The Morality of Extraterritorial Punishment

Alejandro Eduardo Chehtman

PhD LawLondon School o f Economics and Political Science

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Abstract

This thesis provides a philosophical account of the morality of extraterritorial

punishment. The introduction clarifies the methodology by putting forward an

analytical account o f moral rights and endorsing the interest-based theory o f rights, and

presents a normative appraisal of the moral significance of political boundaries. Chapter

1 presents an innovative interest-based justification for the right to punish. Chapter 2

examines the extraterritorial scope of this right to punish with regards to domestic

offences. It argues that the justification here advocated is the best suited to account for

the strong intuition that the right to punish should be primarily territorial in scope, and

provides a critique o f the principles for states’ power to punish offences committed

extraterritorially currendy in force under international law. The next part of the thesis

focuses on extraterritoriality in the context of international criminal law. Chapter 3

argues that the defining feature o f the concept o f an international crime is that it

warrants conferring upon some extraterritorial body the power to punish their

perpetrators regardless of the nationality of both offender and victim. Chapter 4

provides a fresh look at universal and international jurisdiction, i.e., at the theoretical

explanation for the proposition that every state should have the right to punish

international crimes and the scope of the jurisdiction of the International Criminal

Court. Chapter 5 provides a theory of legitimate authority to punish offenders. It relies

on an innovative application of the influential service conception of authority to this

specific question and permits a philosophical examination of issues such as show trials,

victor’s justice, tu quoque, and trials in absentia or against defendants who have been

abducted abroad. A conclusion summarizes the central findings of the thesis and

suggests possible avenues for future research.

3

Acknowledgements

1 often hear that writing a PhD dissertation is a solitary endeavour. This has not been

my experience. I have discussed different parts of the thesis in several contexts. I

presented an early version of Chapter 1 at the Criminal Law and Social Theory Seminar

and the Political Theory PhD Seminar at LSE, and at the Brave New World

Conference (2006), in Manchester University. I presented a previous version of Chapter

2 at the ALSP Conference (2007) at Keele University, the Law and Philosophy

Conference at Stirling University, the Criminal Law and Social Theory Seminar at LSE,

and the Brave New World Conference (2007). Previous versions of Chapter 3 were

presented at the LSE Forum for Legal and Political Theory, the Society for Applied

Philosophy Annual Conference (2008), and the UK IVR Conference, at the University

of Edinburgh (2008). I presented a previous version o f Chapter 4 at the First Annual

Post-Graduate Colloquium on International Law, at SOAS (2008). Parts of Chapters 3

and 5 were presented at the LSE Symposium on Citizenship and Criminalization

(2008). I am grateful to all these audiences for their constructive criticism, particularly

to Markus Dubber, Antony Duff, Katrin Flikschuh, Mathew Kramer, Andrew Lang,

Thomas Poole, Peter Ramsay, Paul Roberts and Hillel Steiner.

Many colleagues and friends read drafts of the thesis and provided useful

comments. Manuel Iturralde read chapters 2 and 3 and discussed many aspects of the

thesis over coffee and carrot cake. Alasdair Cochrane read parts of the Introduction,

and chapters 2 and 3. John Upton read an early draft o f the Introduction. Chris Bennett

read an early version of Chapter 1. Udoka Nwosu and Bemd Krehoff read a draft of

Chapter 3. Alfonso Donoso read a near final draft o f Chapter 1. Parts of Chapter 2

appeared in the LSE Working Papers Series in 2008 (WP4/2008); I am indebted to

Nico Krisch for many comments and suggestions. I am also grateful to Chris

Greenwood for a useful discussion on its topic.

My greatest debt is, however, to my supervisors. I have been immensely fortunate

in this respect. Cecile Fabre first taught me in my Masters and it was in the light of her

teachings that I came up with the topic for this dissertation. I cannot do justice to what

my work owes to her insightfulness and rigour. Her detailed feedback and great

supervision sessions have been almost an unfair advantage to have as a doctoral

student. Gerry Simpson has helped me become an international lawyer and did all he

could to make my work more readable. I am extremely grateful for his support and

guidance during all this time. Mike Redmayne joined as Co-Supervisor during the

second year. His insight and clarity of thought have forced me to re-examine many of

my assumptions and clarify several positions. Many of his teachings on the Law on

Criminal Procedure and Evidence are scattered through in Chapter 5. It has been a real

privilege, a most challenging experience, and a great deal o f fun to work with them.

These last four years have been important not only intellectually but also

emotionally. Many friends made London feel home to me. I was very lucky to have

Manolo, Majo, Juana, Fer, Grego, Mer, Olga, Antonis, Javi, Jan, Kerstin, Mariana and

the nice people in H212 during this time. Colleen Etheridge made my life at the LSE

much easier. Judith Goldschmit guided me in difficult times. Fabricio Guariglia and

Ana Messuti made my starting my PhD at the LSE possible. Marcelo Sancinetti has

always been a source o f inspiration and support. I am grateful to Ruth Mackenzie for

giving me the space and time to finish revising the thesis.

My parents have helped me in every possible way. They are a model o f selflessness

and generosity (they even have patiently, and silently, read several chapters of the

thesis). Nico came to our life in February 2008 to illuminate the last year with his love,

joy and enthusiasm. He is responsible both for much sleep deprivation and for giving

me the focus to finish this thesis. Vero has been there for me all along. Her

encouragement, and support have been truly indispensable. Her impatience often

forced me to leave my work alone and enjoy the great opportunity of being in London.

But it is her love that has made these years probably the happiest of our lives.

I am grateful for the various research studentships and teaching fellowships that I

have been awarded by the Law Department at the LSE throughout studying for my

PhD. I am also grateful for having received the Harold G. Fox Education Fund

Scholarship (2006-7 and 2007-8) and the Karten Scholarship (2007-8).

5

Table o f Contents

Abstract.......................................................................................................................................3Acknowledgements.................................................................................................................. 4Introduction............................................................................................................................... 8

1. The morality of extraterritorial punishment.......................................................................82. Our point of departure...................................................................................................... 143. An account of rights..........................................................................................................16

3.1 The conceptual analysis of rights................................................................................173.2 The interest-will theories debate: identifying the right-holder..................................203.3 Assigning moral rights: identifying the relevant interest........................................... 233.4 Who can have rights: individual interests and the state.............................................28

4. The normative challenges faced by an account of extraterritorial punishment..............295. An overview of the thesis................................................................................................. 41

Chapter 1 An interest-based justification for S’s right to punish O ....................................... 441. The right to punish............................................................................................................442. A definition of legal punishment...................................................................................... 483. A normative justification for the right to punish............................................................. 50

3.1 The justification for S’s power to punish O .................................................................513.1.1 The interest in retribution.................................................................................543.1.2 The interest in having a system of criminal rules in force...............................553.1.3 The interest in reducing crime.......................................................................... 643.1.4 Three Objections...............................................................................................68

3.2 The justification for S’s liberty to punish 0 .................................................................734. Conclusion.........................................................................................................................79

Chapter 2 Extraterritoriality and the Right to Punish............................................................. 811. Introduction.......................................................................................................................812. The Territorial Scope of S’s Power to Punish O ............................................................. 853. The Nationality Principle.................................................................................................. 894. The Principle of Passive Personality.................................................................................975. The Protective Principle..................................................................................................1006. Two Possible Objections.................................................................................................1057. Conclusion.......................................................................................................................116

Chapter 3 A Jurisdictional Theory of International Crimes..................................................1171. Stating the problem.........................................................................................................1172. Piracy-based explanations and the history of international crimes................................1213. International offences as ‘crimes against humanity’ ...................................................... 1264. A ‘jurisdictional’ theory of international crimes............................................................. 1335. Do we need a theory of international crimes?................................................................1416. Terrorism as an International Crime...............................................................................1447. Conclusion....................................................................................................................... 151

Chapter 4 Extraterritorial jurisdiction for international offences........................................ 1531. Introduction..................................................................................................................... 1532. The case for states’ universal criminal jurisdiction......................................................... 156

2.1 A conceptual point.................................................................................................... 1562.2 An argument for states having UJ over international crimes..................................158

2.3 Competing arguments for U J.................................................................................1643. The jurisdiction of the ICC.............................................................................................1734. Objections to U J............................................................................................................. 181

4.1 UJ criminalizes political decision-making.................................................................1834.2 UJ risks becoming a tool against political adversaries............................................. 1844.3 UJ is just an expensive taste for elites...................................................................... 185

5. Conclusion.......................................................................................................................188Chapter 5 Legitimate Authority and Extraterritorial Punishment....................................... 189

1. Legitimate Authority and the Right to Punish................................................................1892. The service conception of authority and the power to punish.....................................1923. The service conception and the legitimate authority of courts..................................... 1994. Authority as ‘moral standing’..........................................................................................2075. Show trials, ‘Clean Hands’, and the problem of Victor’s justice................................... 2116. Conclusion.......................................................................................................................232

Conclusion............................................................................................................................. 2341. The argument..................................................................................................................2342. Avenues for future research........................................................................................... 241

List of cases........................................................................................................................... 244Bibliography.......................................................................................................................... 246

7

Introduction

“the justice of each nation ought in general to be confined to the punishment of crimes committed on its own territories”

Emmerich de Vattel, 1758.

1. The morality of extraterritorial punishment

This thesis is concerned with providing a normative theory of extraterritorial

punishment. Extraterritoriality is a feature that is deeply entrenched in the practice of

legal punishment. For one, states often claim the right to punish certain offences

provided under their own domestic laws even when they are committed outside their

territorial boundaries. Many states, for instance, claim the right to punish certain

offences committed by or against their own nationals on the territory of a foreign

state.1 Similarly, states often criminalize conduct such as the counterfeiting of their

currency, espionage or treason regardless o f where they happen to be performed.

International Law recogizes states these extraterritorial powers. In short, then, although

domestic criminal law is usually regarded as primarily territorial in its application, these

types of provisions are fairly standard in the vast majority o f states.

Moreover, since the end of WW2, but crucially since the end o f the Cold War there

has been a significant development in the practice of extraterritorial punishment for

crimes provided under international law. Many individuals have been prosecuted in

different parts of the world for crimes against humanity, war crimes, genocide, etc.

before domestic, international, or ‘hybrid’ tribunals which were often enough located

outside the territorial boundaries o f the state in which the offences were perpetrated.

Paradigmatic examples of this trend, and of the difficulties it creates, are the current

proceedings against Omar Al-Bashir, standing President of Sudan, before the

1 For instance, under the Sexual Offences Act 2003 English and Welsh courts hold the right to punish English or Welsh nationals or residents who commit certain offences, e.g., in a trip to South-East Asia. Similarly, under article 113-7 o f its Penal Code, France claims jurisdiction over any felony committed anywhere in the world when the victim is a French national at the time the offence took place.

8

International Criminal Court in The Hague, and the extradition proceedings against

former Chilean dictator Augusto Pinochet in the UK.

Finally, the issue of extraterritorial punishment is of pressing importance in certain

debates on criminal justice in the context of globalization. The clearest example is

perhaps that of transnational terrorism. To illustrate, the U.S. currently holds several

hundred people detained in Guantanamo and other foreign prisons. A crucial

underlying claim in this situation is that the U.S. holds the right to punish these

individuals even if the acts for which they would be punished were committed outside

its territory. Several of the normative claims made in this context have been applied,

mutatis mutandis to other phenomena such as transnational organized crime, including

drug-trafficking, cybercrime, trafficking in human beings, etc.

For some reason, however, extraterritoriality has not received much attention from

either people working on the philosophy of international law or on the justification for

legal punishment. It has also been entirely neglected by the literature on global justice.2

This gap in the literature is a significant one. First, because as I shall argue in this thesis,

providing a philosophical account of extraterritorial punishment both sheds new light

on, and challenges, some widely held positions regarding the appropriate scope of the

right to punish. And also, because it confronts debates concerning the justification for

legal punishment with an important problem that challenges the normative and

explanatory force of the leading arguments in the field. The aim of this thesis is,

therefore, to provide a convincing normative account o f the issue o f extraterritorial

punishment; but also to steer current debates on criminal justice and the philosophy of

punishment in new and pressing directions, bringing them more in line with issues such

as globalization, the emergence of transnational crime, terrorism, war, and the

responses to mass atrocities.

2 See, e.g., Simon Caney, Justice Beyond Borders: A Global Political Theory (Oxford: Oxford University Press, 2005) and Thomas Pogge, Global Justice (Oxford: Blackwell, 2001), Thomas Nagel, 'The Problem o f Global Justice1, Philosophy and Public Affairs 33 (2005), John Rawls, The Taw of Peoples With "The Idea of Public Treason Revisited" (Cambridge, Ma.: Harvard University Press, 1999) and Thom Brooks, ed., The GlobalJustice Reader (Oxford: Blackwell, 2008).

Having introduced the central issue this thesis will be concerned with, three

important points of clarification are in order. First, this thesis will provide a

philosophical examination o f the moral justification for the laws regulating

extraterritorial punishment. It is neither a black letter law analysis of what legal rules are

currendy in force, nor an abstract normative account which purports to come up with

an entirely innovative set o f principles that should regulate the practice of

extraterritorial punishment. This account builds on current widely endorsed legal rules

and practices, but stands apart from them by examining the moral principles on the

basis of which they can be justified. To conduct this enquiry I will use the method of

‘reflective equilibrium’ or ‘coherence model’.3 I start with a set o f moral principles that I

consider reliable. These are neither simple moral intuitions, nor mere personal

preferences. They are normative considerations for which I will argue in some detail.

On the basis of these principles, I will assess the morality o f the basic rules governing

extraterritorial punishment under international and domestic criminal law. It is likely

that some principles have such normative force that they will make us revise certain

standard legal practices; but it is also likely that some established legal rules are seen as

so fundamental as to count against certain o f these principles. The coherence method

entails going back and forth between the basic principles and the established set of

rules and practices until we reach a perfect fit between basic reliable principles and

morally justified legal rules, namely, a point of ‘reflective equilibrium’. This method

assumes that readers will “be willing to modify or relinquish some of their beliefs if

they could be shown that by so doing, they would strengthen the support for others

that are more fundamental, and increase internal coherence generally.”4

Second and somewhat relatedly, this thesis takes as a given that the world is

divided into states, which are territorial units with their own political organization and a

3 See John Rawls, A. Theory of Justice (Cambridge, Mass.: Belknap Press of Harvard University Press, 1999) and Norman Daniels, Wide Reflective Equilibrium and Theory Acceptance in Ethics', The Journal of Philosophy 75, no. 5 (1979). For applications o f this method in criminal law theory see Joel Feinberg, The Moral Limits of the Criminal Law / Vol. 1, Harm to Others (New York ; Oxford: Oxford University Press, 1984); this is also similar to the methodology in Duff, Tadros, etc Antony D uff et al., The Trial on Trial Vol. 3, Towards a Normative Theory of the Criminal Trial (Oxford: Hart, 2007).4 Feinberg, Harm to Others, 18.

10

more or less permanent population. It will also acknowledge the existence of

international criminal tribunals and other forms of supranational arrangements. This

thesis is not about devising a new set o f institutions that would best tackle the problem

of criminality in its current forms and varieties. There are good reasons to address the

empirical context in which a normative argument is made, since even though normative

claims and factual conditions belong to different levels o f discourse, they are not

entirely unrelated. For a start, that context constitutes an exogenous limitation that links

the argument to a certain state of affairs. Moreover, factual conditions do raise

normative questions. Accordingly, I readily admit that the normative issue of

extraterritoriality as examined here stems from the fundamental fact that the world is

politically divided into states. However, I will not put this form of organization into

question, but rather work within its framework in order to develop a consistent moral

argument able to account convincingly for most o f our core intuitions regarding the

practice o f extraterritorial punishment.

Thirdly, I need to somewhat isolate the specific normative question I will

concentrate on from other, closely related issues. Ultimately, any justification for legal

punishment needs to make an argument of the following sort: “A is morally justified in

punishing O on the grounds of C, D, etc.” where “A” is a certain individual or body

that metes out punishment to “O ”, and “C, D, etc.” are the reasons that justify

inflicting this punishment. Jeffrie Murphy has suggested that providing a full account of

that claim involves answering at least five interrelated, albeit distinct questions.5 First,

one needs to provide an adequate theory of criminalization, i.e., of the sort of

behaviours that can be the object of criminal sanctions, and distinguish criminal

punishment from, e.g., torts or liability for damages. Secondly, one needs to explain the

moral justification for legal punishment, to wit, “how a certain conduct which is clearly

morally wrong when considered in isolation ... can be morally justified all things

considered”.6 Thirdly, one needs to explain why a particular body (e.g., the state) would

5 Jeffrie Murphy, 'Does Kant Have a Theory o f Punishment?' Columbia Law Review 87 (1987).6 ibid, 510.

11

be legitimately entitled to perform this task. Fourthly, one would need to provide an

adequate theory of criminal liability, that is, a set of rules governing, inter alia,

justifications, excuses, and other defences. And finally, one would need an account of

the appropriate punishments.

Arguably, not every one of these questions is relevant to the case for extraterritorial

punishment. By this I do not mean that they are unrelated to it. Rather, I mean that a

plausible argument focused on the specific issue of extraterritoriality need not sort out

all o f them in full. For example, examining the rules that should govern individual

criminal liability in the international sphere is certainly beyond the scope of this thesis.7

On similar grounds, I will provide here neither an account o f what makes certain

conduct criminalizable, nor one o f the appropriate punishments that should be

available (i.e., sentencing rules). Rather, I will concentrate only the specific

considerations on which the extraterritorial scope of the right to punish rests, which I will

argue have to do with the justification for A holding the right to mete out legal

punishment to O.

In this thesis I will defend seven interrelated propositions.

1. For a given body A to have the right to punish a certain individual O someone’s

interest must be sufficiently important to warrant conferring upon A that right,

and A must be able to claim the authority to do so.

2. In order to explain the (extraterritorial) scope o f this right we need to look at the

interest that explains conferring upon that given body the power to mete out

legal punishment to O.

3. A state’s right to punish O is justified mainly by reference to the collective

interest that individuals in that state have in there being a system of criminal

rules prohibiting murder, rape, theft, etc. in force.

4. States’ right to punish O is primarily territorial in scope.

7 For a recent, extensive overview see Kai Ambos, ha Parte General Del Derecho Penal International. Bases Para Una Elaboration Dogmatica (Der Allgemeine Teil Des V'olkerstrafrechts: Ansats^e Einer Dogmatisierungj (Montevideo: Fundacion Konrad-Adenauer, 2005).

12

5. The right of a particular state to punish O can be exercised extraterritorially in

the case of domestic offences only when these are perpetrated against its

sovereignty, security or important governmental functions.

6. There are certain offences, namely international crimes, that warrant conferring

upon at least some extraterritorial body a right to punish their perpetrators.

7. Every individual state and the International Criminal Court have the moral right to

punish individuals for these offences irrespectively of where the alleged crime

was committed.

I will also defend three more critical positions. First, I will argue that although an

account o f authority is necessary to provide a complete justification for the right to

punish O, the extraterritorial scope of this right is unrelated to the considerations on

which this authority is explained. Secondly, I will claim that certain rules currendy in

force governing the extraterritorial application of states’ domestic criminal laws lack any

sound moral justification. In particular, I will argue against the right attributed to states

to punish O based on the fact that either O or the victim are a national of that state.

Finally, I will argue that the leading normative justifications for legal punishment are ill-

suited to deal with the issue of extraterritoriality. This is because they either lead to

problematic restrictions to the territorial application of a state’s domestic criminal laws

(such as the inability o f a state to punish offences committed on its territory by

foreigners); or they collapse the distinction between domestic and international crimes

by advocating the same broad principles o f extraterritorial jurisdiction for both. But let

us start from the beginning. In the remainder o f this introduction I will introduce the

methodology I will use throughout this thesis and clarify further the normative

challenges that a plausible case for extraterritorial punishment would have to face under

current, non-ideal conditions.

13

2. Our point of departure

Ronald Dworkin has famously suggested that political theories could be classified as

rights-based, duty-based or goal based, depending on which of these moral concepts

was considered of ultimate importance.8 This classification can also be applied to

theories exploring the morality of certain legal practices or institutions. In this thesis, I

will use a rights-based approach to examine the moral justification for extraterritorial

punishment. It is certainly beyond the scope of these introductory remarks to show that

rights-based theories have better grounds or are more convincing in general than goal-

based or duty-based theories. Rather, I shall merely provide some reasons for the

choice I make.

Right-based theories may be plausibly favoured by normative, epistemological and

purely practical considerations. From a normative perspective, they usually are

deontological theories. To that extent they are free from the deep objections raised

against justifications grounded on a teleological or consequentialist structure (goal-

based theories).9 From an epistemological standpoint, the source and significance o f the

moral weight attached to rights can be explicated convincingly. As a result o f its rising

popularity among contemporary philosophers and legal scholars, the language o f rights

has acquired a great deal of clarity and insight. As I will show in the following pages, we

can make explicit to a significant extent what rights are, what it means to have a right,

and what the case for a particular right is. Finally, from a more practical point o f view,

rights discourse is extremely influential in national and international politics as well as in

moral and legal philosophy. As we see everyday in different contexts, most relevant

actors frame their demands in terms of rights, whether that be the right to life, the right

to privacy, the right to social welfare, the right to private property, etc. This has cast

some doubts regarding the emancipatory potential o f rights discourse,10 but it has

8 Ronald Dworkin, Taking Tights Seriously (London: Duckworth, 1994), 169-173.9 For some o f the well-known criticisms see, e.g., Bernard Wiliams’ A Critique of Utilitarianism in J. J. C. Smart and Bernard Williams, Utilitarianism - for and Against (London: Cambridge University Press, 1973), 108-118 and Rawls, A Theory of Justice.10 See Costas Douzinas, The End of Human Tights: Critical Eegal Thought at the Turn of the Century (Oxford: Hart, 2000); David Kennedy, The Dark Sides of Virtue (Princeton University Press, 2004).

14

certainly not undermined their established popularity. Thus, contingent as all this may

be, rights provide a common and compelling language in which competing arguments

are framed.

Before going any further, I need to make this assumption thinner and more

plausible in the light o f the relevant literature on rights. First o f all, using a rights-based

theory does not amount to saying that morality in general is exclusively rights-based.

There are some convincing objections against the latter claim, which I need not

consider here.11 It may be enough to note how implausible it seems to claim that rights

are the sole source of moral value. Secondly, for a given theory to be rights-based, rights

need not necessarily figure in its first premise. Clearly enough, some rights will be based

on some more fundamental right or sets of rights. For instance, the specific right to

write a political pamphlet is normally grounded on the right to freedom of expression.

But not all rights are necessarily valued for rights-related reasons. Some basic or

ultimate rights will usually be grounded on considerations that are, themselves, not

framed in the language of rights. For example, in Dworkin’s theory of rights the

fundamental right to be treated with equal concern and respect is not grounded on a

more fundamental right but on human beings’ dignity or their political equality.12

Similarly, other rights, such as the right of individuals to criticise their government, are

usually considered important wholly or primarily as the instrument of social goods.

Thus, right-statements work as some kind of middle-level reasons which can help us

tackle difficult philosophical issues. In Raz’s words, they “belong to the ground level of

practical thought in which we use simple-to-apply rules”.13

In any case, their fit to our present enquiry might be put into question. Someone

may object, for instance, that the view that the criminal law is rights-based is analytically

unwarranted. Indeed, although rules (legal rules in particular) and rights (legal rights)

are usually related to one another in many normative contexts, this is only a somewhat

11 Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1988), chapter 8.12 Dworkin, Taking Tights Seriously, 198.13 Joseph Raz, Ethics in the Public Domain : Essays in the Morality of Taw and Politics (Oxford: Clarendon Press; Oxford University Press, 1994), 48.

15

recent, contingent association.14 Rules and normative systems in general have

functioned without being construed in terms of rights throughout most of human

history.15 Moreover, the criminal law is usually described exclusively in terms o f duties

and liabilities rather than rights. Its statutes describe conduct such as murder,

manslaughter, robbery, etc., and prescribe or attach certain penalties to those who

commit them. There is, many would argue, something artificial in arguing that the legal

rule which penalizes the intentional killing of another person is basically stating that

individuals have a (legal) right to life.16

Admittedly, the criminal law is best described in terms of duties and liabilities.

However, these concepts can, themselves, be normatively justified in terms of rights, or

so I will argue below. The duty not to kill someone is explained by the right o f that

person not to be killed. It is that particular right that does the justificatory work behind

the prohibition on murder. Similarly, A’s liability to have punishment inflicted upon her

for murdering B is explained by the state’s right to punish offenders. It is that right, or

so I shall argue throughout this thesis, that needs justification. In short, then, the

conceptual and normative apparatus that rights provide not only is adequately suited to

tackle the issue at hand; it also clarifies to a significant extent the specific questions that

this thesis needs to address and the kind of answer it needs to provide.

3. An account of rights

Rights, then, have become pervasive and fundamental features o f practical thought in

law, morality and politics. In virtue of this, it may be assumed that they, themselves,

need no justification but rather that they call for an explanation.17 In the following

14 See Richard. Tuck, Natural Rights Theories. Their Origin and Development (Cambridge: Cambridge University Press, 1979).15 The most famous example of this is the Ten Commandments. “Thou shalt not kilT said nothing about anyone having a right to life.16 Hart in his classic Legal Rights claims that expounding the criminal law in terms o f rights would be confusing and even redundant (H.L.A. Hart, Essays on Bentham (Oxford: Oxford University Press, 1982) 186 and, mainly, 192).17 See Raz at the beginning o f Personal Well-being in his The Morality of Freedom. Against this, Scanlon Rights Goals andfairness in Jeremy Waldron, ed., Theories of Rights (Oxford: Oxford University Press, 1984)

16

pages I will not provide an original account of what rights are. Rather, I shall

concentrate on what I consider the most plausible one available in the literature. But

first, a point of terminology is in order. Unless I specify otherwise, I will not talk about

legal rights. As suggested above, the subject of this enquiry is not what legal rights and

duties individuals and states have under current international law, but rather what legal

rights and duties they should have at the bar of justice. The way in which I propose to

answer this question is to examine what moral rights they have.18 Throughout, I make

the standard assumption that legal and moral rights have the same structure.19

3.1 The conceptual analysis of rights

There is enough consensus in the literature that regardless of whether conceived as

trumps,20 side-constraints,21 or exclusionary or pre-emptive reasons22, the normative

force that rights have is very significant, even if short of being considered absolute.

That is, the language of rights accounts for the strength o f a particular normative

statement.

Wesley Hohfeld’s classical analysis of types o f legal rights, as well as its application

mutatis mutandi to moral rights, remains in its essential features substantially

unchallenged.23 Hohfeld argued that the proposition “A has a right to (p” distinguishes

four distinct types of jural relations or incidents, namely,

137 and Cecile Fabre, Social Rights under the Constitution. Government and the Decent Life (Oxford: Oxford University Press, 2000), 15.18 Moral rights must be distinguished from the much more controversial concept o f “natural rights”. Regardless of the specific content o f natural rights, the main conceptual difference between both is that natural rights normally claim an ‘ontological status’ (Hart in Waldron, ed., Theories of Rights 78) that, to my knowledge, has never been successfully established.19 Fabre, Social Rights under the Constitution, 114; Peter Jones, Rights (London: Macmillan, 1994), 47-48; Raz, Ethics in the Public Domain, 238.20 Dworkin, Taking Rights Seriously, Waldron, ed., Theories of Rights.21 Robert Nozick, Anarchy, State, and Utopia (Oxford: Blackwell, 1974).22 See Raz, The Morality of Freedom, 195-196. On this see below. For criticism o f Raz’s position on this matter, see N.E. Simmonds’ Rights at the Cutting Edge in Matthew H. Kramer, Simmonds, N.E., Steiner, Hillel, A Debate over Rights (Oxford: Oxford University Press, 1998), 204.23 Wesley Hohfeld, Fundamental Legal Conceptions (Yale University Press, 1919). For recent accounts on rights that draw heavily on him, Kramer et al, A Debate over Rights, Leif Wenar, The Nature o f Rights', Philosophy and Public Affairs 33, no. 3 (2005), and Cecile Fabre, Whose Body Is It Anyway? : Justice and the

17

Claim-right Liberty

INo-right

ILiability

Power Immunity

IDisability24

To say that A has a claim-right means that she is owed a duty by other(s). For instance,

my right to personal safety means, among other things, holding everyone to a duty not

to physically attack me. To have a liberty-right, by contrast, is to be free from a duty to

am at liberty to look over my garden fence at my neighbour in that I have no legal duty

not to do that. This, o f course, does not entail that my neighbour is under a duty

himself to allow to be looked at. He could certainly build a taller wall or plant a tree. A

power can be defined as the ability to change one or more of these jural relations

(liberties, claims, powers or immunities). Examples of powers include the right to vote,

to make contracts, to get married, etc. Conversely, someone is said to possess an

immunity when someone else lacks precisely this ability. Under public international law

heads of state and other high-ranking officials are generally considered immune from

the jurisdiction of the domestic courts of other states. This means that, at least while

they are in office, they are not liable to being punished by a foreign state. These four

relationships can be plausibly divided into two levels, the first one covering claim-rights

and liberties and the second one, powers and immunities.

Yet, rights are characteristically formed by more than one of these incidents.26

Throughout the thesis I will refer to specific incidents when appropriate; when I use

the term right I will be referring to the ‘molecular’ right composed by two or more of

these incidents.

Integrity of the Person (New York: Oxford University Press, 2006), chapter 1. For some dispute, see L. W. Sumner, The Moral Foundation of Rights (Oxford: Clarendon Press, 1987).241 modify Hohfeld’s terminology in line with the most usual expressions for each o f these positions.25 Hart, Essays on Bentham, 166-167. Saying that B has no duty to cp is logically identical to saying that A has no right that B cps. At least a duty derived from that right. To that extent, the jural position that contradicts a liberty is termed a “No-right”. No-right stands for no-claim-right.26 See, characteristically, Wenar, 'The Nature o f Rights'.

act (or refrain from acting) in a certain way.25 Take Hart’s example: under English law, I

18

Three relevant distinctions are in order here. On the one hand, while first order

relations determine whether a particular action is permissible, impermissible or

obligatory, second order relations determine the possibility or impossibility of a change

in someone’s moral situation. To claim that A is under a duty not to deprive B of her

freedom of movement means that it is impermissible (wrong) for her to do so. By

contrast, to say that A is under a disability to vote does not (necessarily) mean that it

would be wrong or impermissible for her to do so. Rather, the implication would be that

her vote would be null and void, i.e., of no effect. This thesis is mainly about the

extraterritorial scope of a particular power: the power to punish. In this respect, it is

important to bear this distinction in mind when considering the implications of

claiming that a court C has acted ultra vires or lacked the power to punish a particular

individual O.

On the other hand, to say that A has the power to cp does not necessarily mean that

she is at liberty to do so. The classical example is that A in many instances has the

power to sell a good G she knows is stolen to B, even if she would be under a duty not

to do so; she would be criminally liable and liable to pay compensation to the original

owner but the legal effects of the sell would stand. There is, hence, some degree of

normative independence between the different levels. This is not to claim, however,

that there are certain situations in which the wrong involved in transferring or

modifying certain rights is such that it precludes the transference or modification

itself.27 Indeed, A would lack the power to sell B a gun so that she can kill C.

Finally, a crucial feature o f Hohfeld’s analysis of rights for our purposes is its

relational aspect. Put differendy, rights capture a normative relation between A , the

right holder, and B a certain (potentially identifiable) individual who is bound to respect

that right. For instance, when A lends B her complete collection of ‘The Sopranos’, B is

under a duty towards A to return it. Yet if this is true we need to make sense of a

particular distinction usually made in the literature. To wit, some rights are said to be

27 Fabre, Whose Body Is It Anyway'?, 26. From a non-Hohfeldian perspective see Jeremy Waldron, 'A Right to D o Wrong', Ethics 92 (1981).

held in personam while others are said to be in rem. This means that while the former are

held against a specific individual or group, others are said to be held against humanity at

large. An example of the former is A’s right that B returns her Sopranos collection. An

example of the latter is A’s claim not to be tortured. Rights in rem can be seen therefore

as undermining this relational aspect o f rights that I claim will be relevant for the theory

of extraterritorial punishment I develop in this thesis. However, I suggest they do

nothing of the kind. Rights in rem should be understood as a shortcut for a significant

amount o f bilateral jural relationships between A and several potentially identifiable

duty-bearers. The fact that we need not identify them all at once does not mean that we

cannot do so. In sum, the concept o f rights in rem is simply another way in which rights

talk simplifies our normative thinking.

3.2 The interest-wili theories debate: identifying the right-holder

In the contemporary literature on rights, there are two main general theories that

purportedly explain the nature o f rights, i.e., the choice or will theory and the interest

theory. The debate between them has been described as a “stand-off’.28 This debate is

prominent enough not to merit a full description here. Both theories presuppose that

rights confer some sort of benefit to the right-holder. The specific point of contention

is the “directionality of duties”, that is, it has to do with identifying the right-holder to

whom the relevant duty is owed.29

The will theory claims that having a tight means having a “legally respected

choice”.30 Thus, the essential feature of a right is that the right-holder is able to control

the performance o f the duty that it is owed to her. She may waive or extinguish the

duty or leave it in existence; after breach, she may leave it ‘un-enforced’ or may

28 H. Steiner, “Working Rights”, in Kramer et al, A Debate over Rights.29 Matthew H. Kramer and HiUel Steiner, Theories o f Rights: Is There a Third Way?' Oxford Journal of Legal Studies 27, no. 2 (2007), 298.30 Hart, Essays on Bentham, 190. On this, also Jones, Rights, 32-36 and Sumner, The Moral Foundation of Rights.

20

‘enforce’ it, for example, by suing compensation; and she may in turn waive or

extinguish the obligation to pay compensation.31

There are at least three fundamental shortcomings to this theory. First, it leads

(explicidy and inevitably) to the implausible claim that, inter alia, babies, children and the

severely mentally ill cannot be right-holders. After all, they do not have this legally

protected choice themselves. Secondly, it cannot accommodate rights over which we

have no control regarding their disposition, such as the right not to be tortured. Under

almost every system of criminal law, victims of torture lack both the power to waive

someone else’s duty not to commit any such act, and they even lack the power to waive

the enforcement of their rights by the state. Hillel Steiner has attempted to rescue the

will theory by suggesting that under the criminal law the will theory vests rights in state

officials.32 But certainly it seems odd, to say the least, to suggest that the holder of the

right that I am not tortured is some state official. Steiner finds this implication

unproblematic. Yet, because the issue at stake is precisely the “directionality of duties”,

it goes against our basic understanding of what it is to hold a right not to be tortured to

claim that this right lies with the state and not with the individual. This takes us directly

to the third difficulty with the will theory of rights. In short, it fails to capture why

rights are so important in moral and legal discourse, to wit, that someone’s interests are

harmed if her right is not respected.33 Not all rights can be explained as protections to

their holders’ title to control the performance of a duty. If A beats up B very badly on

the street it would be clear that A has violated B’s right to her physical integrity. Now,

the reason for this is arguably that it really hurts to be beaten up like this not that he did

not ask for her consent. It is therefore B’s interest in being free from this kind o f pain

and not (merely) his tide to control the performance of A’s duty that his right protects.

The interest theory, by contrast, explains the “directionality o f duties” by reference

to whose interest would be affected by the violation o f the duty or would be protected

31 Hart, Essays on Bentham, 184.32 H. Steiner, ‘Working Rights”, in Kramer et al, A. Debate over Bights, 250.33 For this way o f understanding rights see Dworkin, Taking Bights Seriously, 198, and Fabre, Social Bights under the Constitution, 15.

21

by that right.34 It therefore has no trouble explaining why the right not to be tortured

lies with each individual and not with some state official. This account, however, is not

without difficulties. A standard objection against this conception of rights is that it is

unable to accommodate third party beneficiary cases.35 Suppose A hires B to look after

her aged mother (M) in her absence. Normally, we would say that A has a right against

B that she would look after M. But this seems to contradict the fact that it is M who

has the most pressing interest in B f ulfilling her duty. This objection is designed to

make two different, albeit concurrent, points. First, that the interest theory is unable to

explain the distribution of rights in this simple case; and secondly, that the choice

theory explains the situation cogendy. After all, it would be up to A and not M to

demand the fulfilment o f B’s duty, its enforcement by the state, or eventually to

extinguish it.

I believe this objection misses a basic feature of any plausible version of the

interest theory, namely, that not every interest qualifies as an appropriate basis for the

attribution o f a right. Indeed, if the interest that M has were of the kind that should be

protected by a right, this would make the agreement between A and B morally (and

legally) superfluous and, by implication, not only B would be under a duty to look after

M in A’s absence, but also D, E, and F would be under a similar duty. Put differendy,

this example does not cast doubt on the “directionality” aspect o f the interest theory;

rather it shows that it needs further refinement as to what kind o f interests are in fact

protected by rights. Just as M’s interest in being looked after would not do, nor would

A’s interest in having some free time to go to see the new Woody Allen movie explain

B’s duty to look after M.

In sum, I argue that the best way to identify the right-holder is to look at whose

interest is being protected by the relevant right. However, interests can do more than

34 For standard formulations of the interest theory, see Raz, The Morality of Freedom; Matthew Kramer’s “Rights Without Trimmings” in Kramer et al, A Debate over Rights; and Neil MacCormick, “Rights in Legislation” in P.M.S. Hacker and Joseph Raz, Taw, Morality and Society (Oxford: Clarendon Press, 1977).35 E.g., Hart, Essays on Bentham, 187-188.

22

simply identify the right-holder. They can, in fact, help us answer the question o f what

must be the case for X to have a right vis-a-vis Y. To this question I now turn.

3.3 Assigning moral rights: identifying the relevant interest

Joseph Raz has influentially argued that “X has a right if and only if X can have rights,

and other things being equal, an aspect o f X’s well-being (his interests) is a sufficient

reason for holding some other person(s) to be under a duty”.36 I assume here that this

method for assigning rights can be applied, mutatis mutandi, to all Hohfeldian incidents,

namely, that interests explain not only claims, but also liberties, powers and immunities.

In other words, X would have a right if she has an interest which is sufficiently

important to hold some other person(s) to be under a no-right, a liability or a disability,

respectively. Three central aspects of this proposed version of the interest theory call

for further elaboration.

First, under Raz’s definition, rights do not simply correlate with duties, liabilities,

etc.; they actually ground them.37 Rights are considerations that operate at the level of

the justification of a given institution, policy or decision. They are considerations

concerning the reasons on which governments or other people should, or should not,

act. Let me illustrate this. The right to be free from physical assault does not simply

protect a sphere of personal liberty from being violated. It works as a reason to prohibit

other people infringing this sphere by, e.g., attacking me on the street. This is important

because it shows that the explanation of who has a right, precedes the determination of

who owes the person a duty and what that duty is.38

Moreover, the notion of interest can help us explain where the normative force

that rights have in moral argument comes from. The interest theory of rights advocated

here relies on the insight claimed generally by consequentialists that it matters morally

36 Raz, The Morality of Freedom, 166 (my emphasis).37 In short, I suggest both these propositions are true. Logical correlativity and normative implication are not mutually exclusive and can perfectly be co-extensive. For an illustration o f this see Rowan Cruft, 'Rights: Beyond Interest Theory and Will Theory?' Taw and Philosophy 23, no. 4 (2004), 370, fn 337.38 Raz, The Morality of Freedom, 184-185 and Alasdair Cochrane, "Moral Obligations to Non-Humans" (PhD LSE, 2007), 78.

23

whether someone’s life goes well or badly for themselves. Interests, under this

approach, connect the concept of rights to individuals’ well-being. Individuals’ well­

being is, therefore, the fundamental consideration on which the rights-based argument

provided in this thesis ultimately stands.

Yet Raz argues that rights should be understood as reasons o f peremptory force.

That is, rights are not simply considerations of a particularly weighty sort that should be

subsumed in a broader overall calculus; rights end that particular argument by telling us

what is to be done. We should not construe this proposition as suggesting that, by

establishing the existence of a right we have reached the end of our enquiry about what

is to be done.39 As it will be clear throughout the thesis, much more argument is needed

in order to examine who the bearer of the relevant right is, what is its content, its

scope, and exactly who is under the relevant duty, liability, etc. Rather, the proposition

that rights have peremptory force means that they work as constraints on the

maximization o f well-being, and allow us to accommodate the key deontological

insistence on the value and separateness of individuals. 40 By way o f illustration: A is

sitting in the silent coach in a train to Manchester. Apart from her, all the other

passengers are teenagers who have probably reserved seats in the wrong coach. The

fact that A has a right to travel in a silent environment means that all the other

passengers are under a duty to remain silent. This would be the case even if we would

maximize the level of overall well-being by allowing the other passengers to carry on

with their conversations.

Admitedly, the peremptory force of rights might create a difficulty if considered

under the light of another well-extended feature of rights discourse, namely, the fact

that rights tend to conflict. If we follow the interest theory of rights, conflicts of rights

seem inevitable. For instance, A might have an interest in expressing her views that

might be sufficiently important to be protected by a right. However, B might also have

an interest in not being insulted publicly which would also warrant conferring upon her

39 N.E. Simmonds, “Rights at the Cutting Edge” in Kramer et al,^4 Debate over Rights, 204.40 Fabre, Whose Body Is It Anyway?, 18-19. See also Alasdair Cochrane, "Moral Obligations to Non- Humans", 78.

24

a tight. Provided A desires publicly to insult B their rights would clearly conflict. This

would seem inconsistent with Raz’s claim that rights have peremptory force. I submit

this is not the case for two reasons. From the point of view of terminology, we can

rescue this understanding of rights by simply suggesting that interests o f the relevant

type only give rise to prima facie rights. Prima facie rights exist outside o f particular

circumstances. However, once we have examined the concrete situation we may assign

one o f the parties a right. In other words, although prima facie rights can conflict, once a

right is assigned in the specific case, that right works as a peremptory reason. From a

normative perspective, interests can help us tackle conflicts of rights. In this particular

situation it would seem that B’s interest in not being insulted publicly outweighs A’s

interest in being able to do so. Accordingly, we could consistently argue that although

A has a prima facie right to freedom of speech generally, she lacks the right to insult B in

these particular circumstances. The issue o f sorting out conflicts of rights might get

much messier than this.41 However, this simple mechanism will generally suffice for the

purposes of this thesis.

The third central aspect of Raz’s version o f the interest theory is that it provides a

plausible criterion by which moral rights are to be assigned, a neglected question in

some of the most influential accounts o f rights 42 His definition stipulates that someone

has a right not merely if she is an intended beneficiary of a duty, but only if her interest

is a sufficient reason for holding another person under a duty, liability, etc. Three issues

become immediately relevant here. In order properly to grasp the relationship that

rights capture between those who hold them and those against whom they are held we

need, first, to examine more closely what kind o f things interests are. As Fabre suggests,

there are two mistakes we can make with regards to the concept of interest: we may

define interests exclusively by what their holder wants; or we may define them as things

41 A more sophisticated way o f resolving conflicts between rights is probably the German-born principle o f proportionality. For an influential account, see Robert Alexy, A. Theory of Constitutional Tights (Oxford: Oxford University Press, 2002), specially the Postscript.42 See, for example, Hart’s criticisms o f Nozick and Dworkin in H.L.A. Hart, 'Between Utility and Rights', Columbia Taw Review 79, no. 5 (1979).

25

that contribute to her good, irrespective o f what she wants.43 If we make the former

mistake, we would be committing ourselves to the implausible view that a drug addict

has a right that we supply him with heroin; if we make the latter, we might end up

being allowed to force terminally ill people to follow painful, though life extending

medical treatments. A more plausible conception o f interest would rely on generally

making X the final judge about her own good, though it would have to admit that in

certain situations she would not be in a position to make that judgement44

Secondly, whether A has a right to (p does not merely depend on the importance

that cp has for her. The fact that I have an interest in watching Lionel Messi play for

Barcelona F.C. generally does not mean that someone is under a duty to provide me

with tickets for a match. This is because the importance o f watching a football game is

arguably not sufficiently important to hold anyone under a duty to provide anyone else

with tickets. This consideration helps us sort the problem of third-party beneficiaries

outlined above. Indeed, it would hardly be the case that M’s (A’s mother) interest in

being looked after while A is absent is a sufficient reason to hold B under a duty to do

so. This explains why M lacks that right against B. By contrast, the interest that A might

have in B fulfilling their contract might well be an interest that, all things considered,

justifies holding B under a duty to look after M. Much more moral argument is needed

in order to make this case. Yet, the point here is simply to suggest that in order to

assign A. the right to cp we need to identify an interest which is sufficiendy important to

hold someone else under the relevant duty, liability, etc.

Finally, this interest need not be an interest of A’s. Take the following standard

example I mentioned above: under most legal systems A holds, in certain situations, the

power to sell some good G to C that she has stolen from B. In other words, if C did

not know that the good was stolen, the transference of property rights over G would

be perfecdy valid. It would of course be wrong for A to do that, that is, she would not be

under a liberty to do so; but this is besides the point. The point is rather that if A holds

43 Fabre, Whose Body Is It Anyway?, 17.44 This also applies when X stands for a polity or an artificial person. On this see Chapter 3 below.

26

that normative power, it would clearly not be because she has an interest in selling G

herself. That interest can hardly warrant the protection of a right. If there is some

interest that explains this particular power, it has to be the interest of individuals in that

society (and C in particular) in their commercial transactions on certain goods being

easy and relatively secure.

This point can help us solve a well-known challenge to the interest theory of rights.

Peter Jones among many others has argued that the interest theory is unable to explain

powers invested in particular offices.45 The argument goes: we normally say that a judge

J has the legal power to sentence criminal offenders; however, it is unclear how his

holding that right stems from an interest she may have in doing so. One could say that

she would probably have an interest in holding that power because she receives a salary

for doing so and that is her job. Few people would accept, however, that this interest is

a sufficient reason for holding some other person (O) to be under a liability to have her

right to, e.g., liberty modified by J.

In short, this objection fails because it conflates J ’s rights in her individual capacity

with the rights that belong to the public office she holds, i.e., to the state. It is not

individual J who has the power to sentence criminal offenders but rather it is any

person occupying her office. Indeed, once she finishes work, hangs her robe, and goes

home J lacks the normative power to punish the thief who tries to steal her purse in the

tube. There seems to be no other way of explaining how these rights are transferred

from judge J to judge Z when, e.g., J goes on holiday, or is on leave for illness and Z

decides an urgent pending case. Once J is back to work it would be awkward for her to

say that her rights have been infringed by Z. The only plausible way of explaining the

situation is by saying that these powers belong to the state, and that they are assigned to

a particular office rather than to a particular person. O f course some individual must

occupy that office, but this hardly entails that the powers are her own. If we consider

that power as belonging to the state (as an artificial person) then the interest that

45 In Jones, Rights, 31-32. See, also Wenar, 'The Nature of Rights', 242. For a different response to this conceptual difficulty see N. MacCormick “Rights Claims and Remedies” in M. A. Stewart, haw, Morality, and Rights (Dordrecht, Holland: ReideL, 1983), 165-167.

27

explains that power is probably not the individual interest of the office-holder, but a

collective interest in the state having that legal power.

I will not try to argue for this further claim here. Rather, I will point to a specific

feature of the justification for this kind of power that will be o f crucial importance in

this thesis. In some cases, it is not enough for X to have the power to cp, that an interest

of X's would be served by the conferral o f that power; X must also have the authority

to cp.46 Suppose A needs drug D to fight some illness o f hers and that B knows about

this illness and knows that drug D would be appropriate. Although B would be justified

in prescribing D to A, she would not have the normative power to do so. This is not

because A lacks the relevant interest in getting the drug or B lacks the relevant interest

in selling it to her, but rather because B lacks the authority to prescribe it. Similarly, it

might well be, for instance, that the state on which a particular offence was committed,

i.e., the territorial state (TS) would be justified in punishing O. This only means that

someone has a relevant interest in TS punishing O that is sufficiently important to be

protected by a power. However, we may refuse to assign to TS that power because it

would decide whether O should be punished, e.g., solely on the basis of a confession

extracted by torture. That is, although TS would be justified in punishing O, it would

lack the authority to do so.

3.4 Who can have rights: individual interests and the state

A final point needs to be made before we can proceed to examine the normative

challenges that extraterritorial punishment raises. Under the version of the interest

theory of rights endorsed here, X would have a right if and only if X is the kind of

entity that can have interests. It would seem clear that human beings are the kind of

beings that can have interests and that some of these interests are sufficiently important

to be protected by rights. It is also quite uncontroversial that states and international

institutions also are the type of entities that can have rights. Raz makes this point

explicitly when he argues that X is capable of having rights if and only if either his well­

46 Joseph Raz, Practical Reason and Norms (Oxford: Oxford University Press, 1999), 101.

28

being is of ultimate value or he is an ‘artificial person’ (e.g. a corporation).47 This point,

however, should not be conflated with the one about whose interest explains the rights

that states have. That is, for the time being I need not take side here with either the

corporate or the collective theory of group rights.48 Irrespective o f whether states have

rights as a result o f their being of ultimate or merely derivative or instrumental value,

the fact is that the claim that they can have rights hardly needs any defence in the light

of the current literature. What kind of rights states have and why they do so is the topic

of the next section.

4. The normative challenges faced by an account of extraterritorial punishment

In order to understand the type of case I need to make in this thesis, I need first to

identify the specific normative challenges that the issue of extraterritoriality faces. As

suggested above, the account of extraterritorial punishment I will develop relies on the

proposition that the extraterritorial scope of a X’s power to punish a given offender (O) is

largely determined by the reasons that justify X holding this power in the first place.

Accordingly, the answer to the question about the challenges lies with a significant

feature of the concept of normative justification, namely, with the question regarding to

whom we have to justify the power of a particular body to mete out legal punishment to

a particular offender. Standard accounts of legal punishment have been concerned with

justifying this power vis-a-vis the offender. The account of extraterritorial punishment I

develop here is also concerned mainly with this issue. Yet, it deals with a particularly

demanding variation of this traditional problem, namely, the need to justify the power

to punish an offender by an extraterritorial body. This issue will be tackled in Chapters 2

and 4.

However, extraterritorial punishment has also been considered inconsistent with,

or at least problematic under the light of the principle of state sovereignty.49 This is

47 Raz, The Morality of Freedom, 166.48 On this debate see below.49 See, e.g., Larry May, Crimes against Humanity. A. Normative Account (Cambridge: Cambridge University Press, 2005), Introduction.

29

because sovereign states usually claim an exclusive right to regulate the conduct of

individuals within their borders. Analytically, the classical doctrine of state sovereignty

can be conceptualized in terms of three basic propositions. A sovereign state is, first of

all, a “political authority which recognizes no superior”, i.e. that claims supreme law­

making and enforcement authority50 over a certain territory.51 Secondly, sovereignty

entails the “claim [of every state] to be politically and juridically independent”.52 Finally,

not only can each state claim independence of any political superior for itself, but each

must also recognize the validity of the same claim by all the others.53

This traditional account of state sovereignty as the constitutional doctrine o f the

laws of nations would bar any exercise of extraterritorial punishment unless explicidy

authorized by the territorial state. This is entirely incompatible with how international

law currendy regulates the lawful exercise of extraterritorial criminal jurisdiction, which

authorizes certain states or international criminal tribunals to punish certain individuals

extraterritorially irrespectively of the opinion of the territorial state. Accordingly, it

seems unpromising as a starting point for this enquiry. Ultimately, I will argue that a

convincing account will need to justify the imposition o f legal punishment also to the

individuals in the state on whose territory the offence was perpetrated. However, a

more nuanced conception of sovereignty is required for this purpose. The purpose of

this section is, therefore, to clarify precisely what sort of normative challenge state

sovereignty poses for an account of extraterritorial punishment.

There have been three main traditions o f political and philosophical thought that

have tried to make sense of the concept of sovereignty. For the sake of simplicity, I

50 Martin Wight, Systems of States (Swansea: Leicester University Press, 1977), 23 and 129; also in Charles Beitz, Political Theory and International Relations (New Jersey: Princeton University Press, 1979).51 Caney, Justice Beyond Borders, 150 and Wight, Systems of States, 129. See also article I o f the Montevideo Convention and Ian Brownlie, Principles of Public International Taw (Oxford: Oxford University Press, 2003), 70,105 and ff.52 Wight, Systems of States, 130. Sovereignty is “the idea that there is a final and absolute political authority in the political community ... and no final and absolute authority exists elsewhere” argued Hinsley in what is probably still the standard text in the field (Francis Harry Hinsley, Sovereignty (Cambridge: Cambridge University Press, 1966)).53 Wight, Systems of States, 23.

30

shall distinguish them under the names of Realists, Social Liberals and Cosmopolitans.54

I will not address here this body of literature at any length; that is beyond the scope of

the present enquiry. Rather, I will defend a standard version of the cosmopolitan

position. My main purpose is to explain how this position accounts for certain specific

rights that states hold, and which raise normative problems for the justification o f the

issue of extraterritorial punishment. But before going into this, I must briefly explain

why I set the Realist and Social Liberal positions aside. I will examine here only a

schematic version o f each of them which nonetheless captures, or so I claim, their

central gist.

These positions have several features in common. They are both state-centric.

They portray international society as a state-of-nature situation between (generally self-

interested) state-actors.55 Realists and Social Liberals base their positions on a two-level

argument. First, they assume what has been called the domestic analogy, i.e., that states

in the international sphere are analogous to individuals in the interpersonal realm. The

second step, however, is different for each of them. Realists use the philosophical

apparatus of a Hobbesian state of nature, i.e., they claim that sovereigns are in a state of

war of every sovereign against every sovereign.56 Social Liberals, by contrast, describe it

more in Lockean terms; they acknowledge the existence of international moral norms

or a “law of nature that obliges every one” but are concerned with the lack of

54 I follow here Charles Beitz in the Afterword to his Political Theory and International Relations, 214-215. David Held presents these trends as three historically subsequent paradigms that replace one another (see David Held, 'Law o f States, Law o f Peoples', Legal Theory 8, no. 2 (2002)). They have received, however, different names in the literature. Hedley Bull calls them Machiavellians (or Hobbesians), Grotians and Kantians (see his introduction to Martin Wight, International Theory. The Three Traditions (London: Leicester University Press, 1991). In the same book, Martin Wight refers to them as Realists, Rationalists and Revolutionists. Caney adds to this threefold distinction the Nationalists (Caney, Justice Beyond Borders).55 This is true of many o f the classical scholars of international theory or international law. Among them are the classical works by Hobbes, Locke, Wolff, de Vattel and Puffendorf.56 Thomas Hobbes, Leviathan (Indianapolis: Hackett, 1994), 76. Standardly, Hans Morgenthau argued that there is “a profound and neglected truth hidden in Hobbes’s extreme dictum that the state creates morality as well as law, and that there is neither morality nor law outside the state” (quoted in Gerry Simpson, "The Guises o f Sovereignty," in The End of Westphalia, ed. Thakur and Sampford (United Nations University Press, 2006) 11).

31

centralized enforcement.57 Ultimately, they build their normative argument on both

individuals’ and states’ claim to negative liberty, by which they mean the right to non­

intervention or non-interference in their internal affairs.58

Regardless of other considerations, I suggest that these two positions share a

common weakness: namely, that they rely too heavily on the domestic analogy. States

are portrayed in the international arena as artificial persons and they are recognized as

having roughly the same capacities and rights that individuals would have in a similar

state-of-nature situation. Hence, both the Realists and Social Liberals consider states as

the ultimate units of moral concern for the purposes of any discussion on principles of

international justice. This analogy is problematic. States, unlike individuals, are formed

by a multiplicity of persons and groups who are to be considered distinct from the state

and who are themselves units of moral concern. Moreover, states lack the unity of

consciousness and are not organic wholes with the integrity attached to persons qua

persons.59 As Peter Jones puts it “ [w]hen an individual sacrifices one of his desires for

the sake of another of his desires, the individual who sacrifices is also the individual

who gains. When a society sacrifices the good of some individuals for the good of other

individuals, the losers are not identical with the gainers”.60 Thus, while the first case is

generally unproblematic, the second one can often be morally unacceptable. This point

has implications for the second step of these arguments.

In the case of Realists, the state-of-nature argument standardly grounds an absolute

right to self-preservation. This is not meant only as an empirical or explanatory thesis

but also as a normative one. “The necessity (or ‘duty’) to follow the national interest is

dictated by a rational appreciation of the fact that other states will do the same, using

57 John Locke, Two Treatises of Government (Cambridge: Cambridge University Press, 1988) II, Ch. VI.58 Beitz, Political Theory and International Relations, 69-70. I follow him in his distinction between negative autonomy —justifying the right to non-intervention — and positive autonomy — that explains the right to self-determination (ibid, 92-93). While the former requires only that states do not interfere in any way in the internal affairs of other states, e.g., by punishing offences committed in their territory, the latter “requires that the internal authority o f international order be changed and might support intervention by third parties in a group’s struggle for independence from foreign rule” (ibid). Only the former notion is needed to justify state sovereignty under the lines described above.59 ibid, 81.60 Jones, Rights, 63.

32

force when necessary, in a manner unrestrained by a consideration of the interests of

other actors or of the international community”.61 The corollary of this is that “every

Common-wealth, (not every man) has an absolute Libertie, to doe what it shall judge ...

most conducing to their benefit”.62 A first difficulty with this position lies with the

notion of national, or better state interest and how best to define it. As argued in

section 3.3 above, a plausible conception of interests can be defined neither on purely

objective (e.g. “physical survival, autonomy, and economic well-being”)63 nor on purely

subjective grounds. Realists do not provide a solution to this difficulty.64 I have argued

that, with certain restrictions, interests must generally be defined by those who hold

them. But this obscures rather than clarifies the challenge that sovereignty poses for

extraterritorial punishment. If states are morally entided to pursue their national interest

and each one of them is the relevant judge as to what that interest is, there seem to be

no moral grounds on which they can oppose or criticize the extraterritorial application

of other states’ domestic criminal law or of international criminal laws on their territory.

Thus, regardless o f its expl^nao^y power in terms of how states actually behave, the

realist position is unable to account for the normative challenge that the principle of

state sovereignty arguably raises vis-a-vis the justification for extraterritorial punishment.

Besides, the realist position would make for a very poor start for our enquiry for an

even more fundamental reason. In short, one may readily argue that many of the

empirical premises on which the Hobbesian state of nature argument stands are simply

inaccurate. That individuals are the only actors in interpersonal relations, that they are

relatively equal in power, that they are entirely independent of each other, and that they

cannot have reliable expectations of reciprocal compliance, are arguably false as

plausible empirical descriptions applicable to states the international society.65 If this is

so, this undermines the normative implications of the argument, to wit, that we ought

61 Beitz, Political Theory and International Relations, 28.62 Hobbes, Leviathan, 149.63 Alexander Wendt, Social Theory of International Politics (Cambridge: Cambridge University Press, 1999), 235-237, cited in Caney, Justice Beyond Borders, 8.64 Caney, Justice Beyond Borders, 8-9.65 See Beitz, Political Theory and International Relations, 36. For an instructive discussion about the lack o f accuracy o f this assumptions on empirical grounds see pages 37-50.

33

to recognize in states the kind of unfettered liberties which this argument would grant

individuals in that state-of-nature situation.

A similar objection may be raised against the Social Liberals’ second step.

Individual liberty is generally considered of moral value because we assume that each

individual is in a better position than anyone else to decide what is good for her. This

explains the individual right to non-interference in a state-of-nature situation. States, so

the argument goes, may also claim a right to non-intervention on the grounds that they

are also in a better position to decide what is good for them. So far, so good. However,

as previously argued, states differ from individuals in that they are formed by

independent units which are themselves of significant moral concern. An absolute

principle of state sovereignty qua negative liberty (non-intervention) would thus be

problematic precisely because it would allow unlimited conflict with the right to the

negative liberty o f individuals in that state. This is of particular relevance in a world,

such as our own, in which a number o f states persist in carrying out mass atrocities

against parts o f their own populations. Put differently, it is precisely because individuals

must be respected as sources of moral concern that we should not allow all states to

claim a right to non-interference analogous to that which individuals hold in a Lockean

state-of-nature situation.66

Let me clarify my position further. My point here is not that these two-level

arguments are not useful as analytical or explanatory devices. The domestic analogy, for

one, might be useful to examine the right of states to use force in self-defence in the

light o f the more familiar discussions on self-defence at the interpersonal level. But this

should not be conflated with the claim that these two rights are both justified by the

same underlying moral argument. In effect, most elaborate moral accounts on this

particular issue provide a much more careful explanation o f states’ right to use force

than simply equating their position with that of individuals in an interpersonal

situation.67 The contention I advocate is that, if ultimately grounded on this analogy,

66 ibid, 81.67 See Jeff McMahan, 'The Ethics o f Killing in War', Ethics 114, no. 4 (2004) and David Rodin, War and Self-Defense (Oxford: Clarendon Press, 2002).

34

state sovereignty can be consistently defended as a matter o f principle neither on the

basis of a Hobbesian state-of-nature justification, nor on the grounds of an analogy

between individual and state negative liberty.

These considerations have led many scholars to deny that the principle of

sovereignty is of any moral worth. In some recent work, sovereignty seems to be one of

the major threats to the accomplishment of certain goals that are deemed of great value

such as the protection of individual rights.68 According to this point of view, the

principle of state sovereignty necessarily contains the “unfortunate implication of

providing legitimacy for the national repression of citizens, or at least impunity for

tyrants”.69 However, this conclusion is unwarranted. This line o f argument seems to

overlook the fact that sovereignty has often been praised for its emancipatory potential

and its status as a bulwark against imperialism.70 State sovereignty it is not an

anachronistic political concept with just a long history on its back and a bunch o f un­

presentable moral credentials. Rather, I suggest that sovereignty can not only be made

compatible with the fundamental rights of individuals; it can also be justified by

reference to their own status as ultimate units of moral concern.

In order to provide such an account I will draw on two different sources. On the

one hand, I will rely on a standard version o f the cosmopolitan position.

Cosmopolitanism can be succincdy defined by three basic propositions: a) individuals

are the ultimate units o f moral concern; b) this status of ultimate unit of moral concern

is attached to every single human being; and c) this special status has global force, that

is, individuals are ultimate units of moral concern for everyone, not only their fellow

nationals, co-religionists, etc.71 A clarificatory remark is in order here. So defined,

cosmopolitanism is not necessarily committed to advocating global institutions. Indeed,

we should not conflate this set of basic moral tenets (moral cosmopolitanism) with the

68 See, for instance, Antonio Cassese, InternationalHaw in a Divided World (Oxford: Clarendon, 1986), 148, and Geoffrey Robertson, Crimes against Humanity (London: Allen Lane, 1999).69 Martti Koskenniemi, 'The Future o f Statehood', Harvard International Haw Journal 32, no. 2 (1991), 397.70 Frederic Megret, The Politics o f International Criminal Justice', European Journal of International Haw 13, no. 5 (2002).71 T. Pogge, ‘Cosmopolitanism and Sovereignty’ in Chris Brown, Political Restructuring in Europe: Ethical Perspectives (London: Roudedge, 1994), 89-90.

35

issue of its proper institutionalization (institutional cosmopolitanism).72 As argued

above, my purpose in this thesis is to examine the morality of current practices of

extraterritorial punishment, not to provide a set o f innovative institutions or principles

that should ideally regulate this field.

On the other hand, my account will draw on the conceptual analysis of rights

elaborated in the previous section. I will argue that to clarify the normative challenge

that the principle of state sovereignty creates for an account of extraterritorial

punishment it is necessary to identify not only the rights entailed by this principle, but

also the specific Hohfeldian incidents involved. This will provide us with a great deal of

clarity and precision. Moreover, each one of these incidents must be explained by

reference to a particular interest. This leads us to an important analytical point. It is

plausible to assume that most if not all the rights associated with the principle o f state

sovereignty should be conceived as group rights. There are two conceptions of group

rights in the literature, collective and corporate rights. While the former are based only

on a joint interest in a good that justifies the imposition o f duties, liabilities, etc. upon

others, and take individuals as the ultimate unites o f moral concern,73 corporate rights

are based on the attribution of moral standing to a group that is somehow separate

from, and not wholly reducible to, the moral standing of the individuals who constitute

the group 74 I will present here an argument for assigning certain rights to states which

is based on the collective conception. I suggest that this analytical conception o f group

rights is not only compatible with the cosmopolitan moral position I have endorsed,

but that it also avoids the shortcomings of the Realist and Social Liberal positions.

72 For this distinction see C. Beitz, ‘Cosmopolitan Liberalism and the States System’, in ibid, 124-126.73 Peter Jones, 'Group Rights and Group Oppression', The Journal of Political Philosophy 7, no. 4 (1999) quoting Joseph Raz who, in turn, argues that, in order to be a collective right, the following conditions must be met: “First, it exists because an aspect of the interest o f human beings justifies holding some person(s) to be subject to a duty. Second, the interests in question are the interests o f individuals as members o f a group in a public good and the right is a right to that public good because it serves their interest as members o f the group. Thirdly, the interest o f no single member o f that group in that public good is sufficiently by itself to justify holding another person to be subject to a duty.” (Raz, The Morality of Freedom, 208).74 Jones, 'Group Rights and Group Oppression', 362-363.

36

O f the many cosmopolitan arguments underpinning the principle of state

sovereignty available in the literature, I will examine here only two.75 The first one is

based on the idea o f physical protection of individuals. The second one rests on the

concept of self-determination or, more precisely, self-government. Each o f them can be

translated, I shall argue, into the language of rights and they are both ultimately based

on the well-being of individuals. I will argue that together they explain some of the core

features of the principle of state sovereignty without necessarily falling into any o f the

flaws considered above. However, each one of them accounts for different incidents.

The argument based on physical security will only entail states holding a claim-right to

territorial integrity. By contrast, the argument based on self-government will account

for states’ power to dictate legal rules and, crucially, to their holding an immunity against

extraterritorial authorities dictating legal rules on their territory. I will therefore argue

that it is this latter argument that explains the normative challenge that state sovereignty

creates for the justification of extraterritorial punishment.

Let me turn, first, to the physical security argument. “One o f the most common

arguments in favor o f sovereignty ... is that [sjtates do a reasonably good job of

protecting the well-being and freedom of individual subjects”.76 This position suggests

that “ [t]he moral purpose of the modem state [lies on] the augmentation of individuals’

purposes and potentialities, in the cultivation of a social, economic and political order

that enables individuals to engage in the self-directed pursuit o f their ‘interests’”.77 This,

of course, is grounded on the assumption that it is only within a state that individuals

can enjoy sufficient physical security to act autonomously and achieve a significant

amount of well-being. In Antonio Cassese’s words, “[tjoday it could be maintained with

greater truthfulness that without the protection of a [s]tate human beings are likely to

endure more suffering and hardship than what is likely to be their lot in the normal

75 For a good summary of the variety o f cosmopolitanisms see Caney, Justice Beyond Borders, chapter 5.76 May, Crimes against Humanity, 10.77 Christian Reus-Smit, The Moral Purpose of the State (Princeton, New Jersey: Princeton University Press, 1999), 123.

37

course of events”.78 To complete this argument, however, it is necessary to bring in the

assumption that there is no world state or sovereign. As Grotius argued, state

sovereignty is important largely because there is no world state that can easily protect

individuals from attacks by enemy and competing states or groups.

A plausible version of the physical security argument would unfold like this:

1. Individuals’ well-being is o f great moral worth;

2. Individuals can only enjoy a decent amount of well-being when they have some

degree o f physical security;

3. In the absence of a world state, states provide individuals with a significant level of

physical security;

4. States can only provide this security when they are granted a right to territorial

integrity.

5. Thus, this joint interest shared by individuals in a given state is sufficiently

important to warrant conferring upon that state a prima facie right to territorial

integrity.

It is worth examining the precise implications o f this argument. First, the right to

territorial integrity is a right that only states can claim. Yet this argument is o f an

instrumental kind, i.e., it is morally justified on the basis of individuals’ well-being. As a

result of this, it is not an absolute right; it is valuable only insofar as it provides

individuals with a significant amount o f physical security and contributes, thereby, to

their well-being. The problem with this argument, however, is that it does not capture

the real normative difficulty that state sovereignty creates for the power to punish O

extraterritorially. It only provides a justification for a claim-right held by states against

other extraterritorial bodies physically intervening on their territory. This is all a state

needs to be granted in order to supply individuals with this amount of security that is

assumed in 3, and this claim-right is entirely compatible with any form of extraterritorial

punishment. Indeed, it is widely accepted that when PS wants to lawfully prosecute O

78 Antonio Cassese, International haw (Oxford: Oxford University Press, 2001), 4.

38

for an offence she committed on TS, it has to request O ’s extradition and request TS’s

assistance for any investigatory activities on TS’s territory. Put differendy, the physical

security argument does not give us any clue as to what the problem would be with

extraterritorial law-making provided that the prosecuting state avoids sending its police

to enforce a particular decision without the territorial state’s consent.

Self-government constitutes the other standard justification for the cluster of rights

arising from the principle of state sovereignty.79 Its value, it has been suggested, is the

value of entrusting political power over a group and its members to the group itself.80

This proposition already has an important limit built into it: not every decision is

subject to this right, but only political matters are. I cannot examine this issue here in

any detail but it should suffice to note that this consideration makes room for the

important liberal intuition that there are certain private matters which neither the state

nor any other political authority should hold the power to regulate. An obvious

example would be the choice of sexual partners. In any event, insofar as this thesis does

not deal with issues of ctiminali2ation, this aspect is largely unproblematic for the

account of extraterritoriality I will elaborate here. The criminal law, at least when it

refers to standard cases such as murder, rape, etc. is unanimously considered a public

matter. A convincing explanation o f the value o f this right goes as follows:81

1. Individuals’ well-being is of moral worth;

2. Membership of certain encompassing groups, such as nations, has a profound and

far reaching influence on individuals’ lives;

79 There are two different questions related to the right to self-determination or self-government that need not be conflated. One o f them has to do with who has the right to make certain decisions on public matters? A related, although different (and possibly prior) question is who has the right to answer that first question? The answer to these two questions may overlap; however, the justification for both these answers would be different. For the purposes o f this thesis, only the first question is relevant. The literature on secession, the field in which this general right has been more extensively discussed, is concerned with the second question.80 Joseph Raz and Avishai Margalit, "National Self-Determination," in Raz, Ethics in the Public Domain, 126.

811 follow their core argument as stated in ibid.

39

3. To some significant extent, the well-being of these individuals depends on the

prosperity and self-respect o f the group to which they belong;

4. The prosperity and self-respect of the group is aided by, or it might be impossible to

secure without, the group enjoying political sovereignty over its own affairs;

5. Hence, the enjoyment of political sovereignty by the group is an important aspect of

the individual well-being of its members and, as such, sufficiendy important to

warrant the protection of a prima facie right.

As it stands, this argument has at least three important features. First, it is direcdy

related to the question of political authority. It answers the question, “who has the right

to decide?” Secondly, self-government accounts for the main features o f the principle

o f state sovereignty as a normative power to dictate legal rules which are binding on a

given territory, namely, it is an explanation of the basis of its jurisdictional competence.

But at the same time, the interest that individuals in a given state have in enjoying

political sovereignty over their own affairs explains why states also hold an immunity

against extraterritorial authorities dictating criminal legal rules which are binding on

their own territory. That is, this explains the fact that criminal rules dictated by Turkey

are in principle invalid on the territory of South Africa.

Finally, this argument contains two inter-related qualifications. The right to self-

government as advocated here is a collective, not a corporate right; it is based on the

joint interest of individuals in TS not on the interest o f TS itself. Unlike corporate

rights, collective rights need not stand on the controversial assumption that states bear

rights because they have themselves a particular moral standing. This lack of autonomous

moral standing has an important implication: collective rights are not inclined to allow

the moral standing of the state to displace that of individuals and sub-groups who fall

within the group’s compass.82 As a result, they do not generally pose a serious threat to

the rights of individuals belonging to the group. Secondly, this argument also stands on

instrumental grounds. The power and immunity that it entails have no intrinsic value.

82 Jones, 'Group Rights and Group Oppression', 377.

40

They are valuable only insofar they contribute to the well-being of the members o f that

group. This right is neither absolute nor unconditional. It is limited both by the

interests o f non-members and by the interests of members other than their interests as

members (e.g. their fundamental individual interests, or their interests as members of

other relevant groups).83 This means that TS’s immunity against PS’s dictating criminal

rules on its territory could be defeated if the individuals in PS have an interest which is

sufficiendy important to confer upon PS the power to do so, and if this interest is

sufficiendy important to outweigh the interest on which TS’s immunity is based.

Moreover, this also means that TS’s immunity can be also overridden on the basis of

some fundamental interest of the individuals in TS.

To conclude, the self-government argument accounts for the specific normative

challenge that the principle of state sovereignty poses for the justification of

extraterritorial punishment. It identifies a particular joint interest shared by the

members of TS that is sufficiendy important to warrant conferring upon TS a prima facie

immunity against extraterritorial bodies dictating criminal rules on the territory of TS. It

is against this prima facie immunity that an extraterritorial authority will have to justify

holding the power to punish O to individuals in TS.

5. An overview of the thesis

Having clarified the methodological framework I will use in this thesis and precised the

challenge that the principle of state sovereignty raises vis-a-vis the justification for

extraterritorial punishment, I shall briefly summarize the structure of this thesis.

Chapter 1 presents a justification for the power to punish which is based on the interest

o f individuals in a given state in there being a system of rules prohibiting murder, rape,

etc., in force. I will argue not only that X holds the power to punish O, but it is also at

liberty to do so. In order to substantiate this latter claim I will suggest that when

perpetrating a criminal wrong, O forfeits her claim-right against being punished. I will

defend this argument in its own terms and suggest it has at least two significant

83 Raz and Margalit, "National Self-Determination," 139.

41

advantages over other competing arguments available in the literature. First, it accounts

for the fact that the right to punish O is a normative power,; and not simply a liberty to

inflict suffering upon O. Secondly, that it can accommodate the fact that both states

and international criminal tribunals claim the power to punish an innocent individual

(by mistake), while at the same time retaining the core intuition that it would be wrong

for them (i.e., that they would not be at liberty) to do so.

In chapter 2 I will argue that this justification is the best suited to account for the

strong intuition that the right to punish should be primarily territorial in scope. I will

show that, by contrast, some of the most influential justifications for legal punishment

available in the literature either entail a commitment to universal jurisdiction for any

domestic offence or find it problematic to explain a state’s power to punish a foreigner

for an offence committed on its territory. I will also challenge the widely-held views

that states are justified in claiming extraterritorial jurisdiction on the basis o f the

nationality of the offender (nationality principle) or that o f the victim (principle of

passive personality). I will argue that the standard arguments on which these principles

are normally advocated either beg the relevant question they are meant to answer or

simply lead to broader, and arguably less appealing rules on the extraterritorial scope of

the power to punish. O f the rules of international law granting extraterritorial

jurisdiction over domestic offences currently in force I will defend the principle of

protection, that is, states holding extraterritorial jurisdiction over offences committed

against their sovereignty, security or important governmental functions.

The following part o f the thesis is concerned with international criminal laws.

Chapter 3 presents a jurisdictional theory of international crimes. I argue that the

defining feature of the concept of an international crime is that it warrants conferring

upon some extraterritorial authority the power to punish their perpetrators. I submit that

the main arguments available in the literature fail to account for this specific feature

mainly because they are entirely unrelated to the reasons that justify meting out legal

punishment to offenders in the first place. By contrast, I suggest that the argument

provided in Chapter 1 allows me to explain precisely this normative implication for

42

standard cases of international crimes. I will use different varieties of terrorism to

examine the explanatory potential of the view I endorse here. Chapter 4 provides a

fresh look at the issues o f international and universal jurisdiction, i.e., at the theoretical

explanation for the scope of the jurisdiction of the International Criminal Court (ICC)

and the proposition that every state should have the right to punish O for international

crimes. It challenges the standard position that seeks to explain the territorial scope of

the ICC’s jurisdiction by reference to state consent or delegation of powers and rejects

arguments for universal jurisdiction based, e.g., on the pursuit of peace, and the

interests of humanity as such.

The final chapter of the thesis provides a theory of legitimate authority to try

offenders. It applies Joseph Raz’s influential service conception of authority to the

question o f what conditions a given body should meet in order to claim, itself, the

power to punish O. This will enable a philosophical examination o f certain charges

often raised against extraterritorial prosecutions. I will examine issues such as “show

trials”, victor’s justice, “clean hands”, tu quoque, and trials in absentia or against

defendants who have been abducted abroad. I will ultimately argue that although some

of these considerations might undermine a particular state holding the power to punish

a given offender, they are all unrelated to the fact that it purports to punish O

extraterritorially. In other words, I will argue that although the argument for a given

body’s authority is necessary in order to provide a complete justification for this body

holding the power to punish O, it is conceptually and normatively mistaken to consider

these obstacles as bars to extraterritorial jurisdiction. A conclusion will summarize the

central findings of the thesis and suggest possible avenues for future research.

43

1An interest-based justification for S’s right to punish O

1. The right to punish

In the general Introduction I have suggested that in order to explain the extraterritorial

scope o f the right to punish we need to look at the reasons that justify S holding the right

to punish a particular individual in the first place. I will argue for this position in the

next four chapters of this thesis. For present purposes it suffices to note that this

position is common in discussions regarding other aspects o f the scope o f S’s right to

punish, such as sentencing severity, or the kind of penalties that might be morally

warranted.1 Deterrence, retribution and moral reform, for example, standardly lead to

different normative implications in particular situations. They would deal differently,

for instance, with an otherwise peaceful offender who has murdered an unfaithful

partner or with a recidivist shoplifter. I will argue that this same reasoning applies,

mutatis mutandi, to the analysis o f the extraterritorial scope of the right to punish. This is

therefore where we must start our enquiry.

In this chapter I will provide an explanation for the proposition “S has a moral right

to punish O ”. But in order to do this, I first need to provide a more detailed analysis of

the structure of this right. This has significant implications for the account of

extraterritorial punishment I put forward. I have argued, following Hohfeld, that the

proposition “S has a right to cp” may take the form of a claim, a liberty, a power or an

immunity. Within this framework, the right to punish involves first and foremost a

normative power. When an individual (O) is convicted in a criminal trial, she enters the

1 Michael Moore goes as far as arguing that retributivism determines, in fact, also what we should punish (Michael S. Moore, PlacingBlame : A Theory of Criminal Taw (Oxford: Clarendon Press, 1997), 169-170). For critical remarks, see Leo Zaibert, Punishment and Retribution (Aldershot: Ashgate, 2006), chapter 6.

44

courtroom holding certain rights and leaves it with some of her rights altered.2 Usually,

she would be imprisoned, some of her property would be taken away from her, or

some other burden will be imposed upon her.3 In other words, her moral boundaries

are redefined. However, when we say that S has the right to punish O, we not only

mean that she holds the normative power to alter O ’s rights in this harmful way, but

also that it is permissible for her to do so. Yet, as argued in section 3.1 o f the general

Introduction, the fact that someone holds such a power to modify these rights in the

relevant way does not per se entail that she is at liberty to do so. These notions are of a

different order. Thus, a justification for this moral right would characteristically require

also an account of S being at liberty to punish O.4

Finally, it would hardly make sense to say that S has a right to punish O if the

exercise of this normative power and her liberty were not protected by certain claim-

rights. First, it usually requires a claim against O and other parties interfering or

resisting its exercise. Secondly, in contemporary societies individuals are not only under

a duty not to interfere with the state punishing an offender; they are also under a duty

to contribute financially and in some other ways to the exercise of this right.5 To sum

up, the right to punish is a complex molecular right. I will not be able to fully address

2 This normative change (criminal sanction) must not be conflated with the force exercised to enforce it. I assume, throughout, that officials o f the legal system concerned are authorized (i.e. morally justified) to use force in order to enforce this decision within the territorial boundaries of the political organization they belong to. This right to use force comprises, however, only a liberty and a claim-right. Thus it is on a different level than the power to punish. On the right to territorial integrity see the general Introduction to this thesis.3 As a matter o f fact, many more rights are altered depending on the jurisdiction and the legal order. For example, a person’s rights regarding the education o f her children, some o f her political rights, her right to privacy, etc. The power to alter these rights is different to the power considered here but a full account o f this issue is beyond the scope o f this thesis.4 This is the core incident o f the right to punish in Alan John Simmons, The Lockean Theoiy of Rights (Princeton, NJ: Princeton University Press, 1992), 162. For a criticism o f this view, see Daniel McDermott, The Duty to Punish and Legitimate Government', The Journal of Political Philosophy 7, no. 2 (1999). However, unlike mine, McDermott’s point is not that as a matter o f analytical jurisprudence the right to punish is a power-right. Rather, he argues that “punishment requires the existence o f some sort o f authoritative hierarchical relationship in order to qualify as punishment” {ibid). This insight is captured in this thesis in Chapter 5 below and stands, I suggest, on very different considerations.5 People are usually under a duty, inter alia, to go to court as witnesses, to hand in any evidence that a tribunal requests, to act as members o f the jury.

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each one of its incidents here.6 I will only concentrate on S’s power and its liberty to

punish O as these incidents arguably conform the core of this right. Yet, I will argue

that all the normative work needed in this thesis will be carried out by the first o f these

two incidents.

According to the theory of rights I have endorsed in this thesis, each o f these two

incidents will have to be explained by reference to certain relevant interests o f particular

individuals. Thus, I will examine some of the leading justifications for legal punishment

under this interest-based framework and find them wanting. The reason for this is that

they either fail to identify a particular interest which would be sufficiently important to

warrant the protection of a right, or because the interest on which they are based would

lead to harsher and morally unacceptable practices. I will argue, by contrast, that a state

S’s prima facie power to punish O is based on the joint interest o f individuals in that state

in its criminal laws being in force (section 3.1.2). This is because having a system of

criminal law in force constitutes a public good that benefits individuals who live under

it in a certain way. Furthermore, I will argue that legal punishment o f the guilty is also

morally permissible. This is explained by the fact that criminal wrongdoers forfeit their

claim-right against S punishing them (section 3.2). Accordingly, S not only holds a prima

facie power to punish O, it is also prima facie at liberty to do so.

It is important to bear in mind that each of these arguments provides a justification

only for a prima facie right.7 This means that rights are assigned in abstract, without

consideration o f the particularities of the context. In short, an obvious concern would

be that there might be certain countervailing considerations that might, all things

considered, argue against S holding, e.g., a power to punish O. Take for example the

case in which O can claim a prima facie immunity against S punishing her. This may be

because she has already been punished in another jurisdiction, or because she happens

to be the head of government of another state. Indeed, it might be the case that the

6 A complete justification o f the right to mete out legal punishment would also need to examine whether A is under a duty to exercise this particular power. In other words, whether punishment is morally required. I will not address this issue here.7 Indeed, when I refer to a power or a liberty in this chapter I am in fact talking about prima facie powers and liberties. For simplicity, I will not repeat this formulation every time.

46

interest that justifies O holding a prima facie immunity overrides the interest on which

S’s prima facie power to punish her rests. I will not address these countervailing

considerations in this thesis.

Two final points of clarification are in order. Throughout this chapter, I will

distinguish between contingent and non-contingent justifications for legal punishment

and stress the importance of providing a unitary, non-contingent explanation for this

moral right.8 I use the notion of contingency here in the restricted sense of arguments

that apply in some circumstances in which punishment seems warranted, but are unable

to accommodate other standard cases. I shall provide an explanation that, I contend, is

suitable for all possible scenarios in which punishment is arguably warranted. I assume

that a contingent explanation is unsatisfactory even if, when it works, it is more

appealing than the non-contingent one. Preferring a non-contingent argument is not a

matter of personal taste. A unitary justification contributes significandy to the clarity

and workability of the argument.

Finally, the argument I will present in this chapter is not a complete justification

for S holding the power to punish O. The aim of this chapter is to identify a particular

interest that is sufficiendy important to warrant conferring upon S the normative power

to punish 0. Yet, as I suggested in the general Introduction, in order to claim that S

holds the power to punish O it does not suffice that I can identify a particular interest

which is sufficiendy important to be protected by a right; I also need to provide an

account for S having the authority to do so. I will provide such an account in the final

chapter of this thesis. Accordingly, and for the sake o f simplicity, I will assume here

that S does fulfil the relevant conditions for her to have the authority to punish O.

So much for the introduction. I will present my justification for the right to punish

in section 3. In section 2 ,1 provide a definition o f legal punishment.

8 This distinction is meant to supersede Nozick’s argument against teleological justifications o f punishment. In fact, I suggest that his problem with that kind o f justifications is not their moral structure per se (i.e., that they are teleological) but, rather, that the teleological arguments he discusses (such as moral reform) are contingent. This is because he mistakenly assumes that every teleological argument is necessarily contingent. See his Philosophical Explanations, 372-4.

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2. A definition of legal punishment

Punishment constitutes the distinguishing feature o f any system o f criminal law.9

Clarifying the concept of legal punishment is necessary to any justification of this

practice mainly because of the strong tendency to conflate conceptual elements with

normative ones.10 Legal punishment has been influentially defined as an evil or a

deprivation of a good (1), visited intentionally qua evil by human beings other than the

offender (2), on someone “considered” an offender (3), for his offence (4), by a human

agency which is authomed by the legal order (5).11 Hart noted that while assessing any

definition o f punishment it is important to avoid what he calls the ‘definitional stop’,

i.e., “an abuse of definition ... in arguing against the utilitarian claim that the practice of

punishment is justified by the beneficial consequences resulting from the observance of

the laws which it secures”.12 In other words, he warns us against using conceptual

analysis to rule out one justification or the other, that is, to make a normative point.

Accordingly, when punishment is defined as involving the visitation o f hard treatment

upon someone “for his offence” (4), this should not be construed as claiming that the

reason we have for punishing O is that she committed an offence. This would be

smuggling a normative point under a conceptual disguise. All this element involves is

the purely descriptive statement that S punishes O stating that O has committed some

criminal wrongdoing.

As a result, this definition, pace Hart, is perfectly consistent with utilitarian

justifications. Let me explain. The standard objection against utilitarianism is that it

9 The U.S. Supreme Court, e.g., invokes the notion o f punishment as the relevant criterion to decide whether a given sanction is criminal in nature. See Kennedy v Mendo%a-Martine%.10 A further problem is that the concept of punishment is also used in many and diverse contexts in our social life. It belongs, quite comfortably, in educational and religious contexts, but also in relations between friends, couples and even strangers. Some o f the conceptual obscurities and problematic intuitions affecting the justification for legal punishment, I suspect, stem from the fact that it is difficult to isolate this practice from the moral intuitions or principles that work or shape punishment in other social contexts. Admittedly, it is not always clear one should do this, but at least it seems plausible that many o f these practices are sufficiently dissimilar to merit their own set o f rules governing them (on this, see P. F. Strawson, Freedom and Resentment, and Other Essays (London: Methuen, 1974), 19-20 and, strongly against my position here, Zaibert, Punishment and Retribution).111 follow the Flew-Benn-Hart definition as stated in H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of haw (Oxford: Clarendon, 1978), 4-5.12 ibid, 5.

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cannot help but justify punishing the innocent given certain circumstances which I will

not try to specify here. Hart feared that someone might feel tempted to take a shortcut

and argue that became utilitarianism justifies punishing the innocent, and punishment is

an institution that by definition entails punishing the guilty, it is not punishment that

utilitarians justify but something else. However, this will clearly not do. Punishing the

innocent may be a normative difficulty, but is clearly unrelated to the concept of

punishment that utilitarians (as well as retributivists) endorse.

Ironically, the definitional stop might have been working in the opposite direction

to the one that concerned Hart. This definition seems quite well suited to

accommodate consequentialist justifications such as deterrence, moral reform or

rehabilitation but not some of the other arguments that have been advanced.13 In trying

to achieve a purely analytical definition Hart overlooked a conceptual element that is at

the core o f the practice o f legal punishment.14 By defining punishment purely as a form

of external behaviour, Hart fails to distinguish between sentencing and exacting

compensation. Both are deprivations of goods (evils), visited intentionally qua evils by

human beings other than the offender, on her, for her breach of a rule, and are

imposed by a human agency which is authorized by the legal order. But certainly the

latter is usually distinguished from legal punishment and regulated by a different set of

rules. Thus, there must be something missing.

An influential trend in the literature has argued that what is missing is the further

expressive or communicative element involved in legal punishment.15 Thus, the

argument goes, punishment is not only a deprivation of a good but also, and crucially, a

kind of language. Punishment, in Feimberg’s words, is not a mere price tag paid for

13 Igor Primoratz, 'Punishment as Language', Philosophy, no. 64 (1989).14 Hart himself makes this mistake when he assesses the merits o f the denunciatory or expressive theory o f punishment. By portraying it in purely normative terms he ignores the crucial conceptual point on which it relies and, as a result, his conceptual definition ends up being normatively biased. See Hart, Punishment and Responsibility, 169-173.15 See famously “The expressive function of Punishment” in Joel Feinberg, Doing & Deserving Essays in the Theory of Responsibility (Princeton: Princeton University Press, 1974) and Antony Duff, Punishment, Communication, and Community (Oxford; New York: Oxford University Press, 2001). I do not rely here on D u ff s distinction between expression and communication.

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some already consumed good.16 It is an act o f moral communication and, more

precisely, of moral criticism. Punishment expresses condemnation of the crime. It also,

and crucially for our purposes, communicates to individuals that the criminal law that

the offender has violated is in force. And it is precisely this expressive or

communicative element that punishment has and torts lack.

We must be careful, however, not to turn this conceptual point into a normative

one.17 But ignoring this feature narrows by definition the kind of normative argument that

may be used to justify legal punishment. How deeply entrenched this communicative or

expressive element is in the standard practice of legal punishment is insightfully shown

by Nozick’s observation that punishment is visited “with the desire that the person

know why this is occurring and know that she was intended to know”.18 Similarly,

publicity is a widely extended feature of criminal trials which simply means that

punishment is visited also with the desire that society at large know that punishment is

occurring and why.19

The coexistence o f these two elements (a certain external behaviour and a symbolic

element) is thus crucial to understanding what legal punishment is. The relationship

between them, however, needs further elaboration. The position I advocate does not

entail that the notion of legal punishment is constituted by an element of hard

treatment and another element expressing censure. Rather, it is the hard treatment itself

or the external behaviour in general that usually expresses this condemnation or

censure. As Feinberg puts it, “the very walls of his cell condemn him”.20

3. A normative justification for the right to punish

My point of departure is, then, that the tight to punish O is a complex molecular right.

Analytically, it comprises first a normative power to change O ’s moral boundaries in a

16 Feinberg, Doing & Deserving.17 Among scholars who consider this expressive element a defining element o f legal punishment one can distinguish, following Primoratz, between extrinsic expressivist arguments (consequendalist) and intrinsic expressivism (deontological). See Primoratz, 'Punishment as Language'.18 Robert Nozick, Philosophical Explanations (Oxford: Clarendon, 1981), 368.19 On publicity see D uff et al, The Trial on Trial. Vol. 3.20 Feinberg, Doing & Deserving, 98.

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way that entails visiting hard treatment or some form of burden upon her.21 The fact

that someone holds this power means that someone else, O, is under a liability to having

punishment inflicted upon her. Secondly, this right usually involves also being at liberty

to change O ’s moral boundaries in this particular harmful way. Being at liberty to mete

out punishment means that O lacks a claim-right against suffering the harm involved in

legal punishment. I take it that S has a power to punish O if and only if an aspect of

someone’s well-being (an interest of her) is a sufficient reason for holding O under a

liability to undergoing this kind of treatment. I also take it that S is at liberty to exercise

that power if no aspect of O ’s well-being is a sufficient reason for holding S under a

duty not to do so.

3.1 The justification for S’s power to punish O

The purpose o f this section is, thus, to identify a particular interest in O being punished

that is sufficiendy important to be protected by a right. Let us begin with a simple case.

In Dostoyevsky’s Crime and Punishment, Raskolnikof famously killed a pawnbroker and

her sister, who had no other family or descendants. Good or evil, these two women

had a right to their lives, i.e., they had an interest in remaining alive that was sufficiendy

important to put Raskolnikof, inter alia, under a duty not to kill them. Moreover, their

right standardly also entailed a right to self-defence. While Raskolnikof was threatening

them with his axe, this fundamental interest arguably granted them a liberty to repel his

attack even at the cost o f his life. On similar grounds, it would have been permissible

for, e.g., Ivan and Olga, who were just passing by, to use force against Raskolnikof in

order to rescue the two sisters.22 However, the problem begins once these two women

are dead, for it cannot possibly follow that their interest in being alive can entail

conferring a normative power upon third parties to inflict suffering on Dostoyevsky’s

21 Conceptualizing this power as a right is not to say its exercise is discretionary. Powers can also be single rights in the sense that they can confer nondiscretionary authority. Thus, under mandatory sentencing laws judge A would have to exercise this power to sentence O whether he likes it or not.22 For present purposes I assume that most people would accept the claim that individuals have a moral right to resist, repel, ward off or prevent otherwise irreparable unjust harm. On this see Suzanne Uniacke, Permissible Killing : The Self-Defence Justification of Homicide (Cambridge: Cambridge University Press, 1994), 227.

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unusual hero.23 Eloquently, both the ‘self-defence’ and the ‘defence of others’

justifications in criminal law make it clear that this suffering is permissible if and only if,

inter alia, there is an imminent attack on someone’s rights and the act of defence a

necessary means to rescue her from that attack.24 The sisters’ right to life only allows

this much. Their interest in staying alive cannot ground a right to inflict suffering upon

Raskolnikof. In this type of situation punishment simply arrives too late.

How inadequate this argument is as an explanation for the right to punish is

further illustrated by the fact that this interest can only explain a first order incident, i.e.,

a liberty to use force against O. It remains unclear how V’s interest in remaining alive

can result in O being under a liability to have some o f her fundamental rights altered in

the way punishment requires.

My point then is quite simple. The difficulty in explaining the power to punish O

from an interest-based perspective does not arise only from the fact that it implies

inflicting harm upon a human being but, more crucially, it has to do with the fact that

this suffering does not seem to be entailed by anyone’s concrete interest. At least it is

clearly not entailed by a right that O herself has violated or has attempted to violate.

Admittedly, this particular claim holds only insofar as the victim dies. To this it may

suffice to respond that an argument for punishment that is unable to accommodate

precisely the case o f accomplished murder is not only contingent, but utterly

unpromising. Moreover, it would lead to the absurd conclusion that if O were to

commit a robbery, she could escape punishment simply by killing her victim.25

23 I assume for present purposes that the dead cannot have rights. Admittedly, this is a controversial stance to take (supporting this view see, Fabre, Whose Body Is It Anyway?, 22-23; against it, see Feinberg, Harm to Others). To challenge this view, however, it would not suffice to show that the dead can have rights. It would have to be argued that they have an interest in O being punished that is sufficiendy important to confer upon S, e.g., the power to punish her. In so far as the rescuer’s liberty is grounded on V ’s interest in being alive, this is unlikely.24 For a succinct and clear account, see Andrew Ashworth, Principles of Criminal Law (Oxford ; New York: Oxford University Press, 2006), 139-141.25 Extending the definition o f a victim, for instance, to her family (as in re Kurt, ECHR, and Barrios Altos, ICHR among others) would not solve this difficulty because this rationale could eventually be extended to the killing o f her family.

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Accordingly, these simple points lead to three basic, but important, implications.

First, S’s power to punish O cannot be straightforwardly based on the interest of

victims. This is clearly reflected in the fact that in most legal systems victims do not

have the normative power to waive nor promote the exercise of the state’s right to

punish, at least with regards to the vast majority o f offences. Thus, if we are to identify

the interest that grounds this particular right, we need to look elsewhere.26 Secondly,

the justification for first order incidents, such as the liberty to protect V, should not be

conflated with the justification for the normative power to punish O.27 The liberty to

intervene in state S for humanitarian reasons is independent from, and in fact belongs

on a different level to the power to punish offences committed in S extraterritorially.

Finally, the points made in the preceding paragraph highlight a significant advantage of

the rights-based framework I advocate. Namely, that it requires not simply an argument

that punishment is generally advantageous, but rather that it forces us to identify whose

interest it serves and what interest this is. In Jeffrie Murphy’s words, even if

punishment of a person would have good consequences, the question is still what gives

S the moral right to inflict it upon O.28

This, furthermore, also makes it implausible to argue that this power is justified

exclusively by reference to the interests o f O. Unless one subscribes to a platonic

conception of the human being, in which some sort of equilibrium between her

different “parts” is intrinsically valuable, and assumes punishment would help bring

about this equilibrium, it would be too cynical to argue that the suffering involved in

legal punishment would be justified by its contribution to O ’s well-being. Yet, if the

power to punish O has to be explained by taking into consideration the interests of

26 This argument does not entail taking any stance vis-a-vis the rights o f victims during a criminal trial. In fact, I suspect that an interest-based theory o f rights will at least be compatible with granting them several procedural rights, such as the right to attend the trial, introduce evidence, be legally represented, etc.27 This is a quite common conflation in the literature on International Criminal Law. See, e.g. Robert D. Sloane, 'The Expressive Capacity o f International Punishment: The Limits o f the National Law Analogy and the Potential o f International Criminal Law', Stanford Journal of International Law 43 (2007), 45-46.28Jeffide Murphy, "Marxism and Retribution," in Retribution, Justice andTherapy (Dordrecht: Reidel, 1979).

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third parties, surely there must be some sort of forward-looking component to its

justification.

3.1.1 The interest in retribution

Even those who deny any rational justification for criminal sanctions rely in one way or

another on an argument of the kind just identified. For instance, Mackie argues that

retributive punishment is not based on moral reasons, but on feeling or sentiment. The

justification for legal punishment is based, fundamentally, on what he calls retributive

emotion. Mackie offers a biological explanation in terms of standard evolutionary

theory. He begins with the advantage to species and individuals of retaliatory behaviour

and feeling, and proceeds on the basis of natural selection. This process ends with the

socialization and moralizing o f retributive emotion.29 It might well be that his

explanation is descriptively correct. However, it begs the fundamental normative

question. What his explanation tacitly implies, and does not argue for, is that this

emotion has arisen because retaliatory behaviour and feeling are advantageous. How are

these advantageous, for whom, and how much, are precisely the questions any

convincing account of criminal sanctions would need to address.

There are many different retributive arguments in the literature which provide an

account of this forward-looking element.30 Antony Duff, for instance, has argued that

the central point of punishment is to persuade the offender to accept the

condemnation for her crime and, in accepting it, to repent that crime and reform her

future conduct.31 Leaving aside the kind of state this view presupposes or what to do

with offenders who will not possibly reform or even listen, it is hard to see whose

interest would ground this necessity o f a secular penance, and why this interest would

29 John Mackie, 'Morality and the Retributive Emotions', CriminalJustice Ethics 1, no. 1 (1982).30 I take retributivism in a broad sense here. There is quite a bit o f controversy as to precisely which doctrines are stricdy retributivist. For conflicting views see, e.g., John Cottingham, 'Varieties o f Retribution', Philosophical Quarterly 29, no. 116 (1979), David Dolinko, 'Some Thoughts About Retributivism', Ethics 101, no. 3 (1991), and Zaibert, Punishment and Retribution, chapter 6.31 See Duff, Punishment, Communication, and Community. See also Uma Narayan, 'Appropriate Responses and Preventive Benefits: Justifying Censure and Hard Treatment in Legal Punishment', Oxford Journal of Legal Studies 13, no. 2 (1993), 174. For a standard criticism of this view see von Hirsch, ‘Punishment, Penance and the State’ in Matt Matravers, Punishment and Political Theory (Oxford: Hart Pub., 1999).

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be important enough to justify O ’s liability to suffering the harmful consequences that

legal punishment involves. That is, unless some further benefit is identified.

Ted Honderich, for his part, suggests that the truth in retributivism is that

punishment is justified pardy or wholly by grievance-satisfaction.32 This seems more

plausible. However, in a case such as Raskolnikov’s it is unclear whose grievance this

would be. I suspect that every reader feels more grief for his fate, or for Sonia’s, than

for the two women. More importandy, perhaps, an argument needs to be made as to

why we should protect this interest in the first place. The fact that we have this feeling

does not entail that it merits the protection given by a right. Punishment cannot be

valuable just because it is wanted.33 Indeed, not many people would argue for a right to

exercise vengeance upon O even if this were also deeply desired. Those who desire it

must also believe it is valuable and do so only on the condition that it is valuable. This

is precisely what Honderich’s argument needs but fails to show.

3.1.2 The interest in having a system of criminal rules in force

The justification for this normative power I advocate is based, by contrast, on the claim

that having a system of criminal law in force constitutes a public good that benefits the

individuals who live under it in a certain way. This proposition rests on a conceptual

and a normative claim. Conceptually, it implies that there is a necessary link between a

legal system being in force and S having the power to punish those who violate these

rules. It has been plausibly argued that a system of criminal law is in force if and only if

both those subject to it and external observers have reasons to believe so.34 For this to

obtain, three conditions must be met: i) those who violate these criminal rules should

be punished; ii) they should be punished for committing the offence; and iii) this

32 Ted Honderich, Punishment: The Supposed Justifications (Harmondsworth: Pelican Books, 1984), 233-234.33 See on this my discussion o f what kind of interest merit the protection o f a right in section 3.3 o f the general Introduction to this thesis.34 Raz, Practical Reason and Norms, 171. On this, see also, H.L.A. Hart, The Concept of Taw (Oxford: Clarendon Press, 1997). For standard criticisms, see J. M. Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980) and Neil MacCormick, Legal Reasoning and Legal Theory (Oxford: Oxford University Press, 1978). For a very good analysis o f this issue endorsing the conceptual claim defended here, see Nicola Lacey, State Punishment: Political Principles and Community Values (London: Routledge, 1988), Chapter 4.

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punishment ought to be meted out by a body expressly authorized by that legal system.

From the normative point of view, I will argue that having a set o f legal rules

prohibiting murder, rape, etc. in force contributes to the well-being of individuals by

giving them a sense of dignity and security. I will argue that the collective interest of the

members of a society in having a criminal law system in force is sufficiendy important

to put O under a liability to be punished.

Legal systems are commonly regarded as social institutions meant to regulate

behaviour and setde disputes within a society. However, unlike other public goods,

such as bridges or a water-supply system, their existence is not easy to establish. They do

not allow people to cross over a river or get drinking water out of a tap. Laws exist in

an altogether different way. Usually, we say that they exist when they are in force.35

However, the meaning of this proposition needs further elaboration. Most people will

agree that in order for a legal system to be in force it needs to enjoy some level of

compliance. Albeit necessary, this is hardly a sufficient condition. British citizens may

conform to a significant extent to the German criminal laws, but this hardly entails that

these are in force in the UK. Moreover, the significance o f this requirement should not

be overstated. Joseph Raz has plausibly argued that for a legal system to be in force it is

not necessary that the population at large follows the law, nor that the laws constitute

valid reasons for action for the people subject to them.36 Indeed, law-violations are

quite common in every law-regulated society, and people usually act on extra-legal

reasons (moral convictions, social condemnation, etc.). Rather, for a legal system to be

in force it is necessary that people believe that laws are valid reasons for action, i.e., that

they believe they are bound by them.37 Put differently, when we say that British laws are

in force in the UK, it is because both British citizens and external commentators

generally believe that these laws are binding there. In this particular sense we may claim,

for example, that laws regulating the slave trade were in force in the Roman Empire.

35 See, for example, Joseph Raz, The Authority of Taw (Oxford: Oxford University Press, 1979), 104.36 Raz, Practical Reason and Norms, 171.37 ibid.

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The existence of a legal system, however, cannot depend merely on a psychological

fact. That is, not any kind of belief would do. For instance, the fact that many

American “bom again” Christians believe that the Laws of God are in force in the US

does not entail that, as a matter of fact, this is the case. Therefore, the question we must

answer is: what kind of reasons must this belief be grounded on for the legal system to

be in force? To answer this question, Raz points to the role that courts —i.e. law-

applying institutions— play in a legal system.38 Legal systems standardly contain not only

norms guiding individuals’ behaviour, but also an institutionalized way of creating laws

and evaluating the conformity of that behaviour to the law. The existence of courts

indicates that the legal system provides for an institutionalized way of determining legal

situations. Their role mainly is to determine normative situations authoritatively and to

do so in accordance with pre-existing norms which they are bound to apply.39

Moreover, courts apply legal rules to the exclusion o f other conflicting considerations

(unless the laws themselves allow them to do otherwise). Following Raz, I suggest that

these exclusionary authoritative judgements constitute the basis on which officials,

subjects and commentators must ground their belief if we are to assert that the legal

system is in force. These considerations account for the fact that the right to punish

takes the form of a normative power, and not merely a liberty.

Criminal sanctions are but one type of these norm-applying decisions. They are,

however, necessary for any criminal law system to be in force.40 This proposition seems

commonplace, but let me explain the reasons why I submit this is so. Possibly, many

people would think that this is mainly because punishment deters potential offenders

and a system can be said to be in force only if it achieves a certain level o f compliance.

The argument might run along the following lines. Even if moral inhibitions are

38 ibid, 137.39 ibid, 134.40 Raz argues that although sanctions are as a matter o f fact necessary for a legal system to be in force, this is not logically so. Provided human nature were different, he claims, it would be possible to have a sanction-less legal system (ibid). I cannot address this issue here. Yet, I do not need to. I can simply stipulate that this argument holds provided that human nature is not radically modified in a relevant way. I willingly accept that the argument I provide is liable to this contingency charge. But this, I suspect, is a charge no moral argument can be free from.

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sufficiently strong to keep most people from committing serious crimes, whether this

would hold true in a society without a machinery of criminal punishment seems more

dubious.41 That individuals would not be deterred in such a society, however, does not

need be so. It is arguably not clear that this minimum level o f compliance with basic

moral norms would not be achieved if, for example, there is an effective police force

authorized to prevent crimes and use a ‘shoot to kill’ policy against offenders caught

red-handed. This, in fact, may be more determinative than the lack of courts and

prisons in ensuring compliance with the law. The situation o f violent struggle in Iraq over

the last couple of years, where courts are functioning but police prevention is not,

illustrates this point neady.42

By contrast, I argue that the exercise of the power to punish offenders is necessary

for a system of criminal law to be in force essentially because it grounds the belief that

the rules o f the system are binding. It is usually accepted that when O murders V she

not only causally determines his death; she also violates the legal rule prohibiting

murder or prohibiting violations of the right to life. Similarly, punishment comprises

both an element of hard treatment and an element o f censure which, though

conceptually distinct, go together in practice. I contend that both elements are

necessary to ground this belief in the bindingness o f criminal laws. Expressing censure

in a purely symbolic way would be perceived as mocking this rule rather than affirming

its existence. Only by depriving O of some good of hers would we take the existence of

that legal rule seriously. Punishment is therefore needed “as a means of making the

standards o f the criminal law real’, as a way of stating that the meEting o f those

standards is a matter o f duty or obligation ... rather than merely a matter of

exhortation or aspiration.”43 Similarly, the hard treatment element per se (as purely

external behaviour) would not do either. To use von Hirsch’s metaphor, treating people

41 Johannes Andenaes, Punishment and Deterrence (Ann Arbor: University o f Michigan Press, 1974), 124. He quotes some cases in which due to police strikes or breakdown o f the state there was a very significant increase in the amount o f offences (ibid, 128 and 51). Unfortunately, I cannot evaluate here the pertinence and weight o f these examples.42 It is also instructive to see what happened in East Timor after the Indonesian retreat.43 Lacey, State Punishment, 182, emphasis in the original.

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‘like tigers in a circus’ by incapacitating them is merely like ‘neutralising a risk’.44 Such

treatment denies rather than communicates the fact that their behaviour is bound by

legal rules. Indeed, it would make litde sense to impose rules on tigers or hurricanes.

Accordingly, a response to criminal behaviour that lacks this expressive or

communicative element, and thereby treats O as a pure risk, would not be able to

convey the message that the system of criminal law exists.

Moreover, in order for O being punished to ground the belief in the criminal law

being in force, it has to be the case that she is punished for her offence. By this I do not

mean that O has to be in fact guilty o f the particular wrongdoing. As it will become

apparent below, it might be that she is innocent. Yet, the reason she is being punished

must be that she allegedly has, to the relevant standard of proof required, perpetrated

the offence. As Hart rightly points out, this is a conceptual not a normative point.45 The

point is that convicting an innocent individual qua innocent would undermine rather

than enhance the belief in the legal system being in force and, with it, the sense of

dignity and security of individuals living under that legal system. Moreover, even the

general perception that O is being punished for some reason other than the fact that

she committed a criminal wrong, would undermine the message legal punishment needs

to convey to the relevant stakeholders. To illustrate, although he was eventually

imprisoned, the fact that A1 Capone was famously convicted for income tax evasion

could have hardly contributed to the belief in that the laws against, e.g., homicide and

other acts of racketeering were in force in Chicago in the 1930s. This is because, I

suggest, his being punished is often perceived as an excuse to have him locked up, i.e.,

incapacitated.46 Even if individuals may feel safer because O is in prison, this would not

reinforce their belief that the criminal laws are in force.

Finally, in order for a criminal sanction to restore the belief in the legal system

being in force, it is necessary that this power is exercised by someone expressly

44 Andrew von Hirsch, Censure and Sanctions (Oxford; New York; Clarendon Press; Oxford University Press, 1993), 11.45 See section 2 above.46 On this, see my criticism o f Saddam Hussein’s trial in Chapter 5 below.

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authorized by that legal system. Indeed, in most legal systems only if a court of justice

sentences an offender, its subjects and external commentators would agree that this

system’s legal rule has been enforced.47 Private retaliation and harms imparted by

natural forces may be expressions o f natural or poetic justice, but they cannot ground

the belief that the relevant legal rule is in force. Similarly, the fact that German courts

would claim the power to punish every act o f arson perpetrated in Korea would hardly

ground the belief in Korea's criminal laws against arson being in force.48

This completes the conceptual analysis of the connection between S holding the

power to mete out legal punishment upon O and S ’s criminal law system being in force.

I must now turn to the normative argument on which my account relies. I contend that

S’s power to punish O is explained by the interest of individuals in having a criminal

law system in force containing rules prohibiting murder, rape, torture, etc. I believe this

interest is sufficiently important to warrant conferring the power to punish those who

violate these rules. This is because, or so I claim, such a system contributes to the well­

being o f individuals in at least one important way. In Feinberg’s words, the criminal law

“not only regulates my liberty by imposing duties and extending liberties to me, it also

confers rights on me against my fellow citizens and thereby protects me from them in

the exercise o f my liberties.”49 The fact that we believe that these rules are in force means

that we consider not only ourselves, but also people around us bound by them. The

criminal law, thus, contributes to our sense of being right-bearers and that the legal

system takes the protection of our rights seriously. This is all I mean when I claim that

it contributes to our sense of dignity and security. Admittedly, this is an empirical claim

which I cannot fully demonstrate here. However, its plausibility can be convincingly

defended on the basis o f a few standard observations.50

47 This is a factual claim not a conceptual or a normative one. For an argument that this should (normatively) be the case, see Chapter 5 below.48 On this, see Chapter 2 below.49 Feinberg, Harm to Others, 8.50 This is not such a great handicap in this area. In Tallgren’s words: “Any analysis [of this issue] operates ... in an area o f more or less justified belief.” (Tmmi Tallgren, 'The Sensibility and Sense of International Criminal Law', European Journal of International Haw 13, no. 3 (2002), 590).

60

The benefit that a system o f criminal laws being in force provides to individuals in

S is hardly trivial. Consider the alternative. We would probably not want to live in a

society which only allows for private self-defence and retaliation as responses to

wrongdoing. Arguably, the situation would quickly deteriorate and individuals would

end up living in constant fear,51 as living conditions in failed states tend to illustrate.

Furthermore, legal punishment contributes to our well-being in a way that neither

effective policing, nor a system of civil compensation can. Regardless o f how many

resources we allocate to policing or o f whether O would be liable to pay compensation

to V, if no punishment awaits those guilty of criminal wrongdoing individuals will not

consider people around them bound by such prohibitions. Imagine what it would be

like to live not considering people around us bound by a system of legal rules prohibiting,

e.g., murder, rape, etc.

Moreover, a system o f criminal laws being in force is arguably a necessary

condition, even if not a sufficient one, to achieve a particular kind of public order.

Public order is generally considered, in itself, of enormous significance to individuals’

well-being. Yet, my argument does not rely on just any kind o f public order. Public

order could be maintained by means such as terror, as the USSR under Stalin and many

other brutal dictatorships apdy illustrate.52 By contrast, when the criminal law operates

in the way advocated here, that is, by a centralized authority enforcing rules against

murder, rape, etc., it contributes to bring about a kind of order that is based on the

moral significance o f the rights of individuals. This particular kind of public order is

quite plausibly of the utmost importance for the well-being of individuals. I suggest that

the reason why this is so is precisely that, unlike public order in dictatorial regimes, it

contributes significandy to their sense o f dignity and security.

In sum, this feeling of dignity and security is arguably an essential component of

our well-being, and possibly a precondition for leading a minimally decent life. These

considerations show that there being a system of criminal laws prohibiting murder,

51 See, famously, Hobbes, Leviathan, Chapter 13.52 Admittedly, this is a matter o f degree. For even the most horrendous regimes do, as a matter o f fact, enforce certain actual violations o f basic rights.

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rape, etc. in force is both necessary and important for individuals to enjoy this kind of

good. Thus, I claim that their interest in these rules being in force is sufficiently important to

confer upon S the power to punish O.

Three caveats are in order here. First, this justification does not rely on the claim

that punishing offenders will ground a belief in not being ourselves victims of criminal

wrongdoing. I am afraid that neither the criminal law, nor any other available social

institution, would be able to achieve this. Rather, this argument relies only on the

weaker claim that in the society in which we live we benefit from the fact that there is a

rule prohibiting, e.g., torture, murder, rape, etc. in force. Thus, the interest we may have

in minimising such risks should not be conflated with our interest in having a system of

rules that is binding upon individuals.

Secondly, the interest in having a system o f criminal rules in force is both a

necessary and a sufficient condition for the allocation of this power. Admittedly, there

are many beneficial by-products of having these legal rules in force. It is often argued,

for instance, that punishment enhances social cooperation. Laws against money

counterfeiting, fraud and other related offences arguably contribute to facilitating trade

and commercial transactions between parties. Punishment is also said to discourage

certain violent reactions towards wrongdoing, such as private vengeance or self-help, to

provide a public record o f the wrong that has been committed, to contribute to

restoring social cohesion, to appease the grievance desires o f victims, and to provide

the opportunity to the offender to reflect and resolve to reform.53 Yet, under the

argument provided here none of these other beneficial aspects o f the institution of legal

punishment are necessary to justify the allocation of this power.

Finally, this argument is not based exclusively on my interest alone in the system of

criminal rules being in force, but rather on individuals’ collective interest in this kind of

good. As we saw in the general Introduction, collective rights are based on a joint

interest that justifies the imposition o f duties, no-rights, liabilities and disabilities on

others. Thus, my claim here is that individuals’̂ ’#//// interest in having this set of rules in

53 Lacey, State Punishment, 183-184.

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force is prima facie sufficiently important (in terms of its bearing on their well-being) to

hold O under a liability to have hard treatment meted out upon her.

This consideration helps me clarify the role that victims, interests play in the

argument here advocated. In the previous section I argued that the interest in being

protected against a particular wrongdoing can, at best, provide a contingent justification

for S’s power to punish O. And even this was incompatible with some of our central

intuitions regarding the practice of legal punishment. Here I want to suggest that

victims share with other individuals in S the interest in the criminal rules being in force.

Put differently, their interest has no particular status in conferring upon S the power to

punish O, as it is illustrated by the fact that in most legal systems victims usually lack

the power to waive or promote the exercise of the state’s power to punish O.54

By contrast, it could be objected that O may legitimately complain that she does

not belong to the collective whose interest warrants conferring this power. This is

because, the argument goes, it is not in her interest to be punished. I disagree.

Admittedly, O has a clear interest in not being inflicted hard treatment. But this says

nothing against her (also) having a general interest in wrongdoers being punished.

Moreover, the former interest is independent from the latter. When she arrives in prison,

she arguably has an interest in the criminal rule against murder being in force on the

premises. This is because, or so I claim, this rule would contribute to her sense of

dignity and security. Put differendy, O benefits herself from this public good and she

does so irrespectively of whether she would prefer not to enjoy this benefit at all. As a

result, she cannot claim that she is being alienated from the collective whose interests

explain S’s power to punish.

To conclude, I suggest that the criminal law shares the main features of what is

usually conceptualized as a public good.55 In Raz’s words, “a good is a public good in a

54 See footnote 26 above.551 share with Nicola Lacey the sense that it is crucial to conceptualize the criminal law as a public good (see Lacey, State Punishment, Chapter 8). However, I suggest that the liberal framework advocated here does much better than her preferred communitarian one, particularly with regards to the territorial and extraterritorial scope o f the power to punish. On the relevance o f belonging to a community see my discussion in Chapters 2 and 5 below.

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certain society if and only if the distribution of its benefits in that society is not subject

to voluntary control by anyone other than each potential beneficiary controlling his

share o f the benefits”.56 Examples of public goods are public transport or a water

supply system. But public goods need not be of this sort. Other kinds are things such as

living in a tolerant society, the flourishing of the arts, etc. Public goods, in short, are all

sorts o f goods that have the capacity to benefit individuals collectively. Admittedly, they

allow that someone may not profit herself from this good and, also, that different people

may benefit from this good to different degrees.57 But nonetheless it does hold that

what defines this kind of good is the non-exclusivity of their enjoyment.

3.1.3 The interest in reducing crime

One may legitimately wonder whether this is the most important reason we have for

punishing an offender. At face value, the answer seems to be a plain £N o\ Take

deterrence, for example.58 This theory broadly argues that punishment is justified by its

consequences as a means o f protecting individual’s rights and other valuable goods. This

is achieved, standardly, by deterring potential offenders. There is a reasonable degree of

consensus that, to some extent, legal punishment does deter criminal behaviour. More

precisely, the claim is that “ordinary people can sometimes be deterred by both formal and informal

56 Raz, The Morality of Freedom, 198.57 ibid, 199.58 I will discuss only this type o f consequentialist justification. Admittedly, this means leaving aside Braitwaite and Pettit’s republican theory o f punishment (John Braithwaite and Philip Pettit, N ot Just Deserts : A Republican Theory of Criminal Justice (Oxford: Clarendon, 1990)). Although their argument has been influential, I will not be able to deal with it here. The main reason I choose to deal with deterrence rather than “dominion” is its persistent influence and popularity particularly in debates regarding extraterritorial prosecutions. This is true at the level o f policy (deterrence is invoked in the preambles to the Security Council resolutions creating the ICTY and ICTR (SC Res. 827 (1993) and 955 (1994), respectively) and in the Preamble o f the ICC Statute (see also Prosecutor v Rutaganda § 456 (ICTR) and Prosecutor v Delalic § 1234 (ICTY)). But it is also true at the level o f theory and doctrine. See e.g. Sloane, 'The Expressive Capacity o f International Punishment'; Mark J. Osiel, Why Prosecute? Critics o f Punishment for Mass Atrocity', Human Rights Quarterly 22 (2000); Mark A. Drumbl, Atrocity, Punishment, and International Law (Cambridge ; New York: Cambridge University Press, 2007); Theodor Meron, War Crimes Law Comes of Age : Essays (Oxford: Clarendon Press; Oxford University Press, 1998), 196; Tallgren, 'The Sensibility and Sense o f International Criminal Law'; and Lucy Carver and Paul Roberts, "Penal Law and Global Justice" (2008), paper cited with permission from the authors.

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sanctionZ’.59 Then, is not protecting people’s rights more important than re-establishing

their confidence in a set of rules being in force? And, if so, should not this interest

warrant the protection of a right? In effect, the interest in protecting individuals’ rights

is arguably stronger than the interest in having a system of rules in force (though they

are not mutually exclusive). However, I submit that this interest cannot explain S’s power

to punish O.60

In short, it does not follow from the interest that individuals have in deterring

potential criminals that we should assign S a normative power to punish O, but rather

this interest seems to warrant conferring upon S a different type of right. Let me

explain. If the ‘more’ punishment is exacted, the stronger the deterrence effect, we

should have no trouble endorsing Feuerbach’s classic formula according to which the

risk for the lawbreaker must be made so great, the punishment so severe, that he knows

he has more to lose than he has to gain from his crime. In this light, it is at least

dubious that our interest in preventing crimes explains O being under a liability to being

inflicted legal punishment. Rather, this interest is more clearly served by a liberty to stop

and harm O, rather than by a power to punish her.

There are several examples in the international sphere that illustrate this point well.

NATO military intervention against Serbia, for one, had a much stronger impact on

stopping the crimes being perpetrated in the former Yugoslavia against, e.g. the

Albanian Kosovar population, than the establishment o f the ICTY or any other threat

o f extraterritorial punishment.61 Similarly, President Reagan characterized the US air

raid on Libya on April 15, 1986, as being a “pre-emptive action” that would provide

Col. Kadhafi “with incentives and reasons to change his criminal behaviour”.62 To put

59 Andrew von Hirsch et aL, Criminal Deterrence and Sentence Severity: A.n A.nalysis of Recent Research (Oxford: Hart Pub., 1999), 1 and 33-37. They emphasize, however, that twenty years before, the overview carried out in the US by the Panel on Research on Deterrent and Incapacitative Effects o f the National Academy o f Science still showed some significant doubts regarding this issue (at 12-13 and 47).60 In this chapter I provide certain reasons against deterrence as an adequate justification for the power to punish O in its own terms. In Chapter 2, however, I will argue that deterrence is worse suited to deal with the issue o f extraterritoriality than the argument advocated here (see section 6).61 Indeed, the massacres in Srebrenica occurred two years after the creation o f the ICTY, and the atrocities in Kosovo were perpetrated almost six years later.62 D. J. Harris, Cases and Materials on International haw (London: Sweet & Maxwell, 2004), 936.

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it bluntly, then, deterrence would advocate summary executions or pre-emptive military

attacks rather than cosdy criminal trials and long prison sentences.

Moreover, the connection between the power to punish O and deterrence must be

critically examined under the light of the admittedly limited empirical data available. For

it to work, deterrence depends on two separate and accumulative causal links. First, the

visitation of punishment needs to result in actual deterrence of potential offenders.

Secondly, the deterrence of potential offenders should cause a reduction in the overall

number of offences.

The first causal link is of particular relevance for us here.63 Indeed, the link

between the visitation of legal punishment and the actual deterrence it achieves is

significandy conditioned by the fact that deterrence is a subjective phenomenon.

Accordingly, what matters is not so much the actual infliction o f punishment but,

rather, what potential offenders believe the threatened consequences to be and how

they evaluate them.64 Available empirical studies suggest that the relationship between

actual behaviour and future consequences (offences and punishment in particular) is far

more complex than it is intuitively thought, and that it sometimes conflicts with the

principles that traditional deterrence has embraced.65 Behavioural studies argue that it is

not clear that potential offenders take into consideration future consequences often

enough when deciding to commit an offence.66 This is even more notorious in violent

crimes, in which an emotional component is usually involved.67

63 The second link is affected by phenomena such as ‘destigmatization’, ‘deterrence decay’, mass incarceration, etc. See e.g. von Hirsch et al., Criminal Deterrence and Sentence Severity, 8 and Daniel Nagin, "Criminal Deterrence Research at the Outset o f the Twenty-First Century," in Crime and Justice: A. Review of Research, ed. Michael Tonry (Chicago: University of Chicago Press, 1998). On the detrimental effects of mass incarceration in the U.S. see James P. Lynch and William J. Sabol, 'Assessing the Effects o f Mass Incarceration on Informal Social Control in Communities', Criminology and Public Policy 3, no. 2 (2004).64 von Hirsch et al., Criminal Deterrence and Sentence Severity, 6-7.65 Paul H. Robinson and John M. Darley, 'Does Criminal Law Deter? A Behavioural Science Investigation', Oxford JournalofLegal Studies 24, no. 2 (2004), 182.66 On top of the standard characteristics that make potential offenders a group less inclined to think about future consequences o f their conduct (risk seekers, impulsiveness, and alcohol and chug consumption), several studies include other temporary state o f mind that are likely to drive out rational considerations o f punishment. These include desires for revenge or retaliation, rages or angers, paranoia, manic-depression, and other personality features that would not be considered illnesses such as low

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This criticism could be raised even more forcefully in the context o f genocide,

crimes against humanity, war crimes or other crimes committed extraterritorially. As

Roberts and Carver suggest, “[rjational calculation is especially liable to be displaced

where perpetrators link criminality with personal survival or the defence o f their

national or ethnic identity, and where immediate group norms exert more direct

influence over behaviour than phenomenologically distant international legal codes”.68

Thus the weakness in deterring potential offenders extraterritorially is due, inter alia, to

the limitation of resources and limited number o f prosecutions, the lack o f political

legitimacy o f most extraterritorial courts from the point o f view of the targeted groups

or individuals, but also to the collective nature o f these crimes and the psychological

pattern of the leaders.69 Admittedly, we do not have empirical studies that actually

prove these hypotheses. Yet, given the doubts that studies raise in purely domestic

settings, we have good grounds to suggest that whether deterrence is achieved is a far

more tenuous and complicated process than it is intuitively assumed.70

Finally, if still committed to translate this interest into a normative power, the

obvious problem that the deterrence theorist will face is its well-known inflationary

character. Deterrence seems committed to the claim that the ‘more’ punishment is

exacted, the stronger the deterrence effect of criminal law would be and, as a result, the

fewer violations of these rights and goods would obtain. In particular, the deterrent

ability to delay gratification or lack o f self-control (ibid, 179-180). von Hirsch et al, refer in this sense to the strong presence o f need or even ‘desperation’ and the conscious decision not to dwell on the possibility o f getting caught leading to this same results (von Hirsch et al., Criminal Deterrence and Sentence Severity, 36).67 See Stephanie Carmichael and Alex R. Piquero, 'Sanctions, Perceived Anger, and Criminal Offending1, Journal of Quantitative Criminology 20, no. 4 (2004) on the relevance o f anger in particular. I do not know o f other studies working on the basis o f other emotional states.68 Roberts and Carver, "Penal Law and Global Justice", 30.69 See, e.g., Sloane, 'The Expressive Capacity o f International Punishment', 72-73; Tallgren, 'The Sensibility and Sense o f International Criminal Law', 571-572. As Drumble suggests, “many perpetrators want to belong to violent groups”, and they often believe “they are acting for the benefit o f the collective, not their own personal gain” (Drumbl, Atrocity, "Punishment, and International Law, 171, with reference to Jaime Malamud-Goti, 'Transitional Governments in the Breach: Why Punish State Criminals', Human Rights Quarterly 12, no. 1 (1990)).70 In fact, studies do not talk about causality but rather about the weaker notion o f correlation. On this and on the particular problem o f simultaneity see von Hirsch et al., Criminal Deterrence and Sentence Severity, 17 and 20.

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effect has been said to depend on the certainty, severity and celerity of the

punishment.71 The problem is that it would be committed to justifying and endorsing

every bit of harm inflicted, as long as it does not outweigh the harm prevented. As

suggested, this reasoning would be particularly problematic in the domain of

extraterritorial punishment. Accordingly, deterrence would advocate a power to punish

that is entirely incompatible with the way in which this power is currently construed. It

would, for instance, offer no argument against altering O ’s moral boundaries in ways

that allow for corporal punishments, including torture. Under certain circumstances,

such as the context of grave crimes under international law, it would probably warrant

conferring a power to alter not only O ’s moral boundaries, but also those of her family

and friends. To clarify, all these implications should not be construed in deondc terms.

The point here is that deterrence fails to account for certain key features of the

normative power to punish O as it currently stands, i.e., what states can validly do, not

that it leads to morally impermissible outcomes.72 That will be the topic o f section 3.2 of

this chapter.

3.1.4 Three Objections

Before closing this section I will examine three lines of criticism that can be levelled

against the argument I presented here. On the one hand, it may be argued that the

explanation for the power to punish O I advocate stands on instrumental grounds. This

would make it liable to the charge of contingency raised above against victim-based

arguments. In effect, my account entails that punishment is only of derivative value. Its

value depends on it contributing to the well-being of individuals. Yet, despite being

instrumental, I argue that the relationship between punishing an offender and

reasserting our confidence in the bindingness of a legal rule is intrinsic and necessary,

not purely contingent. There are neither epistemological difficulties nor exceptions for

which this justification does not hold. Whenever an offender is punished, for her

71 Bentham, Jeremy, The Rationale of Punishment (London: 1830), chapter VI.72 On the relevance o f standard practices see section 1 in the general Introduction to this thesis.

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offence, and by a particular body expressly authorized by a particular legal system, this

necessarily conveys the message that the rule o f that legal system O violated is in force.

Also, I suggest that these legal rules prohibiting murder, rape, etc. being in force

necessarily contribute to individuals’ sense of dignity and security. Thus, the

instrumentality charge cannot ground its purported implication, namely, that an

instrumental account of legal punishment will not be able to explain all the standard

cases.

On the other hand, the argument advocated here would seem to collapse into a

purely consequentialist account, therefore being liable to the criticisms raised in section

3.1.3 against deterrence. However, this perception is based on a mistaken

understanding of the role that consequences have in the argument I have presented. We

can plausibly define a consequentialist doctrine as one in which “the good is defined

independently of the right” and which argues that “the right is maximizing the good as

already specified”.73 Deontological theories, by contrast, should therefore be “defined

as non-teleological ones, not as views that characterize the rightness o f institutions and

acts independendy from their consequences.”74 Under the light of these rough

definitions, the argument defended here does not define the good as individuals’ well­

being and then tries to maximize its overall level. Rather, the point is whether the

interests of X, Y, and Z warrant conferring upon S the power to punish O even if,

overall, that would lead to a suboptimal level o f well-being. In other words, although it

takes consequences into consideration, my argument does not simply add them in a

broad calculation of utility, crime-reduction, or overall individual well-being.

In effect, we must be careful not to make the mistake of misrepresenting the

specific interest on which the argument rests. The argument defended here does not

explain S’s power to punish O on the basis of an increase in the sense of dignity and

security that individuals enjoy in S. This would admittedly lead to trying to maximize this

sense of dignity and security. Rather, the relationship of implication works in the

73 Rawls, A Theory of Justice, 22.74 Rawls adds: “all ethical doctrines worth our attention take consequences into account in judging rightness. One which did not would simply be irrational, crazy.” (ibid, 26).

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opposite direction. It is because having certain criminal rules in force contributes to our

sense o f dignity and security that a state (S) holds the power to punish an offender (O).

Thus, this argument relies on the interest individuals in S hold in these laws being in

force rather than directly on the interest they have in their security. Once there is a

certain level of law enforcement we can safely argue that the legal system is in force.

This is all this argument requires.

Accordingly, this justification is free from the harshness charge raised against

deterrence. Indeed, individuals’ belief in the existence o f a rule need not entail a power to

alter any right held by O, such as the right not to be tortured. A brutal penalty, such as

boiling an offender in oil, could express that a rule against, for example, robbery is in

force. And some people may even say that it would do so more convincingly than a

prison sentence. However, this rights-based justification does not entail such power.75

First, imprisonment and other more lenient penalties clearly suffice to communicate that

a particular criminal rule is in force.76 Moreover, when these more lenient means work,

one arguably lacks the power to use a harsher one. Let me illustrate this point by

reference to a different right. In a situation of self-defence in which Arnold, a trained

Samurai, is coming towards Victor armed with his katana to kill him, it is usually

conceded that Victor is at liberty to use a bazooka to repel the attack, provided he does

not have a less harmful means at hand. However, most people will similarly agree that

this liberty would not obtain had he the possibility to use a pistol with a paralyzing dart,

which would be equally effective. Moreover, the fact that he can use the pistol does not

make it simply a preferable means within the legitimate exercise of his right to self-

defence. Rather, it is generally believed that in the second situation Victor would be

75 A penalty that is too harsh, by contrast, can undermine rather than enhance the belief that individuals are right-bearers and that these rights should be respected. I suggest that would be the case, e.g., if O were tortured to death or the state were to sentence all her (innocent) family to forced labour.76 Admittedly, this point touches upon the question o f cardinal levels o f punishment: why imprisonment or fines instead o f physical punishments or death? This is an extremely difficult philosophical question that is beyond the scope o f this thesis. Indeed, I am not defending imprisonment or any other specific penalty per se; rather, my point only is that although the argument I advocate requires some level o f hard treatment (sufficient to convey the existence o f a criminal rule), it does not lead to disproportionate or brutally harsh penalties.

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under a duty not to use the bazooka.77 This is usually described as proportionality.

Mutatis mutandis it is clear that in order to assess the allocation of a power to punish O,

it is also necessary to assess whether the means which one intends to use are

appropriate, and whether there are no less harmful means available. Altering O ’s right

to liberty, for instance, may be one such less harmful means. This explains why this

argument construes S’s power to punish O in a way that entails S holding the power to

alter neither all of O ’s rights, nor, for instance, the rights of her family and friends to

their personal liberty. To be clear, my position here is not, or not simply, that it would

be wrong for S to punish O by torturing her, or by imprisoning her family. The point is,

rather, that this would be for S to act ultra vires.

There is one final objection to consider: that my argument commits me to the view

that S holds the power to punish the innocent (IN). Indeed, as I suggested above the

requirement that someone must be punished for her offence does not mean that she has,

as a matter o f fact, to have committed that offence. It only means that this is the reason

for which she is being punished or, in other words, that S can punish neither the

innocent qua innocent, nor the guilty for the wrong reasons. I must admit this charge is

accurate. Yet, instead of considering it a fatal objection to this account, I will suggest

that with this feature lies a significant strength o f the account of legal punishment I

advocate. By distinguishing between S’s power to punish IN and it being at liberty to

do so, this account can accommodate the fact that states hold the power to punish

innocent people, while at the same time being able to claim, as I will do in the next

section, that punishing IN would be wrong. This means, in short, that IN’s conviction

and her sentence would be valid, i.e., her moral and legal boundaries would be

effectively modified by S.78 However, it would be impermissible for S to punish her.

There is no contradiction here. As stated in the general Introduction to this thesis,

77 Uniacke, Permissible Killing: The Self-Defence Justification of Homicide.78 On why and under what conditions can S claim the authority to punish IN, see section 3 in Chapter 5 below.

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sometimes it is possible to have a power which one is not at liberty to exercise or, in

less technical terminology, a right to do wrong.79

Admittedly, I have also argued that there are certain situations in which the wrong

involved in modifying certain rights is such that it precludes the modification itself.80 I

suggest that this is not the case with punishing IN under the framework I advocate. But

before arguing for this, it is worth situating this issue within my broader argument. My

position is that in order for S to have the power to punish X, not only some interest of

its members should be sufficiently important to confer upon S this power, but also S

must have the authority to do so. As I will argue in Chapter 5 below, S can claim the

authority to punish X only when X receives a fair trial, she is convicted after a thorough

investigation and S is credibly punishing her because it is satisfied to the relevant

standard of proof that X is guilty. Put differently, my account only commits me to the

view that S has the power to punish IN when it makes a reasonable mistake.81 This

removes much o f the sharpness in this charge. Establishing a system of criminal laws

ultimately entails accepting the possibility of punishing the innocent in some measure,

at least with current levels of technology. Besides, as long as S can justify to IN why she

is being punished and this justification is reasonable, her being punished would not

undermine the sense of dignity and security that S’s criminal laws being in force

provide, even if her conviction is mistaken.

This separation between first and second order incidents, that is, between powers

and liberties, explains at least two familiar implications. First, it follows that if IN can

demonstrate that she was mistakenly convicted, she would be entitled to be

compensated for the harm she suffered. Moreover, if her innocence can be

demonstrated she should be immediately released. Yet, these new changes in her moral

boundaries are not automatic. They would be the result o f a further decision by a court

of law, i.e., an authority expressly authorized by the legal system, restoring IN ’s moral

79 A typical example is that of A’s power to sell B a good she knows is stolen.80 See section 3.1 in the general Introduction above.81 See section 3 in Chapter 5 below, specially my discussion o f the authoritativeness o f mistaken decisions (infine).

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and legal boundaries (when possible).82 Secondly, the legal power to release and

compensate IN is required by the overall argument I have advocated. It would not be

the case any longer that IN would be punished for her offence. Once her innocence has

been demonstrated her remaining in prison or being censured can hardly convey the

message that the criminal rule she had allegedly violated is in force. Her remaining in

prison would undermine, rather than enhance the dignity and security of individuals

living under that legal system. It is quite likely that a state which imprisons the innocent

will be perceived as oppressive and as a threat to the rights of individuals in it.

To conclude, none of these objections actually harm the argument I have

presented. It is time to tackle the remaining incident.

3.2 The justification for S’s liberty to punish O

As suggested above, a complete justification for legal punishment does not merely need

to argue that S holds the power to punish O; it must also argue that it is right for S to do

so. In Hohfeldian terms, the purpose of this section is to argue that S is also at liberty to

punish O. This argument can be made in two different ways. One way would be to

argue that an interest of individuals in S is sufficiendy important to put O under a no­

right not to be punished. The other way would be to argue that O lacks herself a claim-

right against having punishment inflicted upon her. In Razian terms, we can invoke an

overriding consideration or a cancelling condition.83

Deterrence provides an argument of the first kind. I suggest, however, that it also

fails to provide a convincing justification for the permissibility o f legal punishment. In

short, the problem with deterrence is that, because of its consequentialist structure, it

fails to take into consideration the value and separateness of individuals. I have argued

above against deterrence as an explanation for S’s power to punish O. I now claim that

it is also lacking as an explanation of its liberty. The reasoning goes as follows. Because

82 Interestingly, states do not normally have the power to overturn convictions reached by other state’s courts.83 Raz, Practical Reason and Norms. See also Mitchell N. Berman, 'Punishment and Justification', Ethics 118 (2008).

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the interest of individuals in deterring future offences often overrides the interest of an

innocent individual in not being punished, the prima facie liberty to inflict punishment

upon O would outweigh O ’s prima facie claim-right against suffering that kind of

treatment. This is highly problematic. For one, it means that even if O were innocent

she would not be able to claim compensation for having been wrongly convicted.

Moreover, a deterrence theorist would also be committed to reject prosecuting Judge J

for knowingly convicting an innocent person.

I will follow, by contrast, a cancellation strategy. I will argue that O lacks a claim-

right against being punished by S. There are at least two possible lines of argument for

this case. I can either argue that O has forfeited her claim-right, or I can suggest that her

general claim-right not to suffer this kind of treatment does not include a protection

against legal punishment. I will defend here a version of the forfeiture argument.

Standardly, the forfeiture of a right makes reference to a right lost due to some

crime or fault, breach or neglect of rules on the part o f the person who is said to be

responsible for it.84 The concept o f forfeiture is used in legal and moral discourse often

enough not to warrant any kind of conceptual clarification here. The normative work

forfeiture does, by contrast, needs to be carefully examined. Within the rights-based

literature, Daniel McDermott provides an account of how this mechanism works that

merits careful consideration.85 He argues that when O wrongs V say, by stealing £100

from him, V suffers two losses. First, she loses her money and, secondly, she does not

receive the treatment due to her as a right-holder. As a result, O incurred a debt for each

of them. Just as she forfeited her right to £100, she forfeited her right to some moral

good of hers. However, unlike the £100, O cannot restore to V the treatment she did

not provide her. So in a moral community in which all members are entided to certain

benefits and burdens, “[b]y failing to provide their victims with the treatment they owe

them as right holders, wrongdoers incur debts to their victims o f the value of this moral

good, and, as a result, they forfeit their rights to other, equally valuable, moral goods.”86

84 Uniacke, Permissible Killing: The Self-Defence Justification of Homicide, 201.85 Daniel McDermott, The Permissibility of Punishment', Law and Philosophy 20 (2001), 424.86 He then goes to examine, as I will need to do below, which moral goods wrongdoers forfeit.

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Punishment is thus a means of denying these forfeited moral goods to the

wrongdoers.87

Needless to say, I am sympathetic to this general approach. However, it seems that

by using the notion of moral debt to justify O ’s loss o f her right, McDermott is unable

to explain to whom that debt would be owed if V dies. Admittedly, if O shoots V and V

goes to hospital, O would incur a debt for hospital charges as well as other damages.

Pace McDermott, she would also incur a moral debt for having violated V’s rights. But

in a Raskolnikof-type case, O ’s material debt is extinguished with the sisters’ death.

Why would O ’s moral debt not be extinguished precisely in the same way?

McDermott’s main strength, i.e., the fact that “there is nothing at all mysterious about

the claim that committing a debt-generating act changes a person’s moral status”88,

seems to condemn his explanation to contingency — particularly so as he explicitly

rejects explaining this moral change by resorting to the idea that an offender incurs a

debt towards the society in which she lives.89

Albeit ultimately unsuccessful, this approach shows precisely the kind of

explanation I need to provide. What needs elucidation is the mechanism by which O

committing a wrong results in a change in her moral boundaries that makes S punishing

her permissible. Before addressing this issue, though, two clarificatory points are in

order. First, it is often argued that an offender forfeits some of her rights. Yet, it is very

unclear what right would an offender allegedly forfeit, or better, what type o f right this

is. Most of the accounts in the literature fail to distinguish between first order and

second order Hohfeldian incidents. They fail to characten2e the right to punish as a

power. Accordingly, these accounts need the forfeiture argument to do all o f the

normative work, namely, to account for O ’s lack of an immunity and a claim-right

against being punished. By contrast, in this account the forfeiture argument explains

87 This argument should not be conflated with the unfair advantage theory once defended by Andrew von Hirsch and Herbert Morris, among others (see Andrew von Hirsch, Doing Justice : The Choice of Punishments (New York: Hill and Wang, 1976) and H. Morris, 'Persons and Punishment', The Monist 52 (1968)). For criticisms, see Dolinko, 'Some Thoughts About Retributivism' and von Hirsch, Censure and Sanctions.88 Daniel McDermott, 'Debts to Society', The Journal of Political Philosophy 10, no. 4 (2002), 441.89 ibid.

75

only why the offender lacks a claim-right against S exercising the power to punish her. By

definition, to argue that O lacks the claim-right against being punished by S, means only

that S is at liberty to do so.90

Secondly, it is important to clarify precisely what normative work the forfeiture

argument is doing in my overall explanation. As discussed in the previous section, S

holds the normative power to punish an individual who is in fact innocent (IN), to wit,

who by definition has not forfeited any claim-right of hers.91 This is not just a

normative claim but also, and crucially, a fairly accurate descriptive one. Yet, if this is

the case, what does it mean to argue that S is under a duty not to punish IN? The

implication is that, whenever possible, S should restore IN to the situation she was in

before being punished, and when this is not possible she should compensate her for the

wrong she suffered. Moreover, if S’s judge J knew that punishing IN was wrong

because she was innocent, J could herself be criminally prosecuted. By contrast, to say

that S is at liberty to punish O, or similarly that O lacks the claim-right against S doing

so, is to say that O is owed nothing. So if she is punished and afterwards pardoned she

does not get to be compensated for the time she spent in prison.

Having clarified this, it is time to explain how the forfeiture mechanism works.

This is an extremely difficult philosophical question. It is behind, for instance, most

attempts at capturing what it means for O to deserve being punished, or to claim that

punishing her is intrinsically good. I can only provide here a succinct explanation. In any

event, this should suffice for present purposes. As it will be clear throughout this thesis,

the extraterritorial scope relies on the argument I have made in support of S’s power to

punish O.

I suggest that the doctrine of forfeiture o f rights simply accounts for the fact that

the protection that rights provide every individual is not unconditional. Rather, this

protection is usually conditional upon conduct. To give a quick example, if I arrive late

at the Opera, I would probably be denied access to my seat. This means that my claim-

90 On this, see section 3.1 o f the general Introduction to this thesis.91 Subject to S meeting the requirements for claiming authority to punish that innocent individual. On this see section 3 in Chapter 5 below.

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right against being stopped at the door is not absolute; it is conditional upon me

arriving on time. The penalty for being late is, in the language I have chosen, that I have

forfeited the claim-right I had against the theatre management letting me in.92 This

means, in short, that I am not being wronged by the doorman who refuses me entry; she

is at liberty (and probably under a duty) to stop me. Accordingly, I cannot claim

compensation for having missed the show, nor am I entitled to get new seats for the

next performance. The only remaining question is, then, whether this particular

limitation to my right (being refused access) is a legitimate one to impose. Analogously,

we may say that individuals have a claim-right against being punished by the state. This

means that the state is under a duty not to punish them, and if it violates this duty, it

should (at the very least) compensate them. But this claim-right is neither absolute nor

unconditional. Individuals are entided to its protection provided they do not perpetrate

a criminal wrongdoing.

The reason why I suggest this precise limitation is legitimate is disappointingly

simple. I argued that legal punishment is a form of moral language that allows S to

censure O and to convey to individuals in S the belief that a set of criminal rules are in

force. I now contend that since O committed a wrongdoing she cannot complain about

being censured for having done so. With her act, O put into question the existence of

the relevant prohibition. She cannot pretend not to be strongly censured for her

conduct and reminded that this prohibition is binding upon her. To reject this particular

limitation would entail recognriing this claim-right as having a kind of unconditionality

that no plausible theory of rights would be willing to endorse. This is, in short, what is

meant when we say that by committing a crime, O forfeited her claim-right against

suffering this kind of treatment. It is not the fact that the interest of individuals in S

overrides O’s interest in not being punished. Accordingly, this explanation has the further

92 This is surely not the only way in which I can forfeit this right. Shouting or misbehaving during the performance will generally entail a similar consequence. Unless, o f course, it’s the unorthodox, albeit popular “buuuuu” against the regisseur.

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advantage of being able to explain precisely why it would be wrong, i.e., impermissible

to punish IN.93

Let me clarify my position by pointing out two important features of this

argument. First, this forfeiture claim does not necessarily entail that anyone is at liberty

to punish O for her offence. O can be said to have forfeited her claim-right in rem, i.e.

against the world at large, or in personam, namely, against certain individuals or bodies.94

Forfeiture arguments are normally construed in the former sense. Yet, as Cecile Fabre

has suggested, this is too hasty. It does not follow from the fact that O has forfeited her

claim-right that no one punishes her, that anyone can do so. Rather, a more plausible

version of the forfeiture argument is that “it is no longer the case that everyone is under a

duty not to” punish her.95 In other words, the forfeiture argument explains why 0 has

lost her claim-right against S punishing her; the reason why this liberty is conferred

upon S (and not S2) is explained, rather, by the interest that justifies S in particular

holding the power to punish O. This means that it would not only be ultra vires, but also

impermissible for S2 to punish O for a theft she committed in S. If S2 were to punish

O, the sentence would not only be void, but she would be entided to compensation.

Secondly, this explanation does not lead to the implausible position that denying

that O holds a claim-right against being punished amounts to denying O ’s interest in not

being punished. The fact that an interest warrants the protection of a right should

clearly not lead us to conflate the two. Most probably O would still have an interest in

not being punished, just as the late-comer to the Opera would keep her interest in

seeing Pavarotti. The only thing she has lost, according to the view I defend, is the

moral shield that protected this interest.

To conclude, the theory of forfeiture I propose explains precisely why S would be

at liberty to punish 0. I make this argument by claiming that in committing an offence,

O forfeited her claim-right against being punished. If this argument is sound and, as a

93 My explanation here owes a significant deal to von Hirsch in his Censure and Sanctions.94 On this distinction, see section 3.1 in the general Introduction above.95 Cecile Fabre, 'Killing Culpable Attackers in Defence o f Others', 2008, unpublished paper cited with permission from the author, 4.

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result, O cannot legitimately claim a protection to this particular interest after

committing a criminal offence, it follows that she would not have a reason to complain

or receive compensation for being punished by S.

4. Conclusion

In this chapter I have argued that in order to provide an explanation for the

proposition CS has the moral tight to punish O ’ we need to distinguish between the

different incidents that form this molecular right. I have only put forward here an

argument for S’s power and its liberty to punish O. I argued that S’s power to punish O

can be plausibly explained by reference to the collective interest of individuals in S in its

criminal laws being in force. This is because a system of rules prohibiting murder, rape,

etc. being in force constitutes a public good that contributes to their well-being. I

suggested that this interest is sufficiendy important to put O under a liability to being

inflicted legal punishment. By contrast, I argued that standard versions of retributivism

or deterrence theory fail adequately to account for the allocation of this normative

power.

Moreover, I argued that S’s liberty to exercise this normative power against a

particular offender is explained by her having forfeited her claim-right against being

punished. By definition, the fact that X lacks a claim-right against being (pied by Y

means that Y is at liberty to <p X. The forfeiture mechanism has been explained by

reference to the fact that the claim-right against being punished, like almost every other

moral right, is conditional upon the conduct o f its holder. In particular I argued that the

claim-right against being censured in the way punishment requires is conditional upon

O not committing a moral wrong.

Let me close this chapter by assessing the relevance of this general argument for

the purposes o f my overall project and elaborate further how it is situated vis-a-vis

other accounts within the literature on legal punishment. The argument I have

developed is arguably a version of a hybrid or dualist justification of which the most

famous and influential examples are probably those developed by Herbert Hart and

79

John Rawls.96 However, it is unique in its use of the Hohfeldian analysis of rights. I will

argue throughout the thesis that this argument will prove much more convincing than

its rivals in the way it deals with the issue of extraterritoriality. For present purposes,

however, I suggest that its reliance on Hohfeld provides it with a crucial advantage over

standard dualist accounts.

On the one hand, Hohfleld’s analysis accounts for the precise normative

implication of each of the arguments I have presented. While my initial argument

explains O ’s liability to being punished, the argument developed in 3.2 explains her lack

o f a claim-right against this (i.e., S’s liberty). This cannot really be said of Hart’s

distinction between the general justifying aim of the institution of punishment and the

right principles of its distribution. On the other hand, my analysis provides a sound

criterion of how the different arguments relate to each other. The fact that liberties and

powers are of a different order is an important feature of Hohfeld’s analysis of rights.

This means for our purposes that in some cases S would have the power to do

something which she is not at liberty to do. Put differendy, this argument is able to

explain why states unanimously hold the power to punish innocent individuals, while at

the same time maintaining that it would be wrong for them to do so. Finally, in the

following chapters I will argue that the justification for conferring upon an extraterritorial

body X the right to punish O depends on whether someone’s interest does in fact

warrant conferring upon that particular body X the power to punish O. Thus,

distinguishing the grounds of these two incidents will allow me to address precisely

what is at issue in this thesis.

96 Hart, Punishment and Responsibility and John Rawls, "Two Concepts o f Rules," in Philosophy of Punishment, ed. Robert M. Baird and Stuart E. Rosenbaum (New York: Prometheus Books, 1988). For a more recent version see von Hirsch, Censure and Sanctions. Unlike these three accounts, I deny that any o f the considerations on which my argument rests is consequentialist in structure.

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2Extraterritoriality and the Right to Punish

‘The Spaniards violated all rules when they set themselves up as judges of the Inca Atahualpa. If that prince had violated the law of nations with respect to them, they would have had a right to punish him. But they accused him of having put some of his subjects to death, of having had several wives, tee­things, for which he was not at all accountable to them; and, to fill up the measure of their extravagant injustice, they condemned him by the laws of Spain. ”*

1. Introduction

In the previous chapter I presented a general justification for the power to punish O.

Chapters 2, 3 and 4 o f this thesis are concerned with the extraterritorial scope of this

power. While the present chapter addresses the extraterritorial application of a state’s

domestic criminal rules, the following ones will deal with the power to punish crimes

under international law. As a matter of law states characteristically claim the power to

punish certain domestic offences extraterritorially. Under the Sexual Offences Act

2003, e.g., English and Welsh courts have the power to punish nationals or residents of

these countries who commit certain types of sexual crimes, e.g., on a holiday trip to

South-East Asia. Similarly, under article 113-7 of its Penal Code, France claims

jurisdiction over any felony committed anywhere in the world when the victim is a

1 Emmerich de Vattel, Law of Nations; or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns (New York: AMS Press, 1773), 110 Although this quotation eloquendy shows precisely what is at stake in this chapter, a point o f clarification is in order. De Vattel got the facts wrong, possibly following the at his time well-known account o f Garcilazo. In short, the Inca Atahualpa was not tried through a fair procedure as sometimes suggested but rather executed, in haste, on expediency grounds. Cortes and some o f his men feared an attempt to rescue him while waiting for reinforcements. Moreover, he was allegedly executed for offences against Cortes and the Spaniards, not for offences against his own people. Incidentally, Cortes’ decision was heavily criticized in Spain on grounds that he lacked the right to try a King. For a good account o f this story see J. Hemming, The Conquest of the Incas (London: Papermac, 1993).

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French national at the time the offence took place. Most states criminalize conduct

such as the counterfeiting o f their currency, espionage or treason regardless of where

they happen to be performed. In short, although the criminal law is usually regarded as

primarily territorial in its application, these types of provisions are fairly standard in the

vast majority of states. For some reason, however, the issue of extraterritoriality has not

received much attention from either scholars working on the philosophy of

international law or on the justification of legal punishment. I purport to address this

gap in the literature and challenge some widely held views regarding the extraterritorial

scope of states’ power to punish O.

The extraterritorial scope of states’ right to punish is ultimately governed by

international law. States are free to decide whether and when they will exercise this

right, but they can do so only within the constraints imposed by the international legal

system. By and large, there are currently three different grounds or principles on which

a state (S) can base its power to punish an offender (O) extraterritorially. These are

commonly known as the principles of nationality, passive personality and protection

and they rely, respectively, on whether the offence was committed by one of S’s

nationals, as under the Sexual Offences Act above, against one o f its nationals, as in the

French provision cited, or against the sovereignty or national security of that state, as

with the counterfeiting of national currency.2

This chapter examines the moral foundations o f this well-established legal

framework and finds them lacking. By contrast, it advocates a more restricted

extraterritorial scope for S’s power to punish O. In section 2 I will argue that the

territorial scope of S’s right to punish O is determined by the reasons that justify S

holding the power to punish wrongdoers generally. On this basis, I will provide an

explanation for the primarily territorial character o f domestic criminal law. This theory

entails that although we have good reasons to warrant states extending the scope of this

2 Sometimes other bases o f jurisdiction are articulated, such as the floating territorial principle, jurisdiction on embassies abroad, in aircrafts (B.J. George Jr., 'Extraterritorial Application o f Penal Legislation', Michigan Law Review 64, no. 4 (1966), 609 and Michael Hirst, Jurisdiction and the Ambit of the Criminal Law (Oxford: Oxford University Press, 2003), specially chapter 6). These ‘quasi-territorial’ bases o f jurisdiction are not covered in this chapter.

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tight extraterritorially on grounds of protection (section 5), i.e., over crimes which

affect their sovereignty or security, doing so on the basis o f the nationality of the

offender or that of the victim would be to act ultra vires (sections 3 and 4, respectively).

Moreover, I will contend that the arguments on which both these principles are

standardly grounded either beg the fundamental question which they are meant to

answer or collapse into much broader claims of extraterritorial jurisdiction that few of

their supporters would be prepared to endorse. In section 6 I will examine two possible

lines of criticism to the framework put forward. On the one hand, I will discuss

whether my theory is too restrictive and, as a result, unconvincing in a world in which

crime is increasingly becoming globali2ed. On the other hand, I will examine whether

other justifications for the right to punish available in the literature may be, overall,

better suited to explaining the way in which international law regulates states’

extraterritorial criminal jurisdiction.

Before going any further, three caveats are in order. First, I have suggested that the

right to punish O can be best portrayed as a normative power to alter certain of O ’s

moral boundaries, usually by inflicting some form of harm on her, coupled with a

liberty to do so and a claim-right not to be interfered with.3 I am concerned here only

with this power to punish offences committed extraterritorially. So defined, the power to

punish does not entail that S is at liberty to obtain custody over her by force, or to

pursue an investigation on the territory of a foreign state without that state’s consent.

The question examined here, then, is whether, for example, Israel had the power to try

Eichmann when he was already on its territory, not whether it was at liberty to ‘arrest’

him in Argentina and held a claim-right against Argentina not to interfere with that

arrest.4 To avoid any possible equivocation between these incidents I will assume

throughout that the defendant is present on the territory o f the state that claims

jurisdiction over her at the point when it wants to exercise its power.

3 See Chapter 1, section 1 above.4 On the normative independence of these two incidents under public international law see, generally, F. A. Mann, "Doctrine o f International Jurisdiction," in Further Studies in International Fan> (Oxford: Clarendon Press, 1990) 19 and 21. For a dicussion on whether states have the authority to try offenders abducted abroad see section 6 in Chapter 5 below.

83

Secondly, this chapter examines the grounds on which S’s courts can claim

jurisdiction to punish an offender (O). It deals with the question of whether a particular

state can claim to have, or adequately serve, the interest that justifies it holding a power

to punish O. This question should not be conflated with that regarding the particular

conditions that each concrete state court should meet in order to claim, itself, the right

to do so. As I have argued in the general Introduction to this thesis, in order to confer

a power to punish O upon S it is not enough that someone’s interest would be served

by the conferral of that power; S must also have the authority to punish O. Let me

briefly illustrate this distinction. A court o f a prosecuting state (PS) may serve an

interest o f the population of the state in whose territory an offence was committed (TS)

in trying O for an act of murder she committed in TS.5 This particular court, however,

may at the same time fail to meet the conditions that justify it, in particular; holding such

power. This may be because, for example, it would normally decide on O ’s culpability

on grounds o f confessions extracted by torture. It is only the former question that will

be tackled here. 6 Yet, as I will argue throughout this thesis, it is this particular question

that largely determines the extraterritorial scope of S’s power to punish O.

Finally, the argument provided in this chapter is limited to domestic offences. In

other words, when examining the distribution of criminal jurisdiction among states

three sorts of considerations are often considered relevant: the territory on which the

offence was committed, the nationality of the people involved in the offence (offender

or victim), and the kind of offence the court is dealing with, i.e., whether the act is

allegedly a domestic or an international offence. As regards the latter distinction, this

chapter only examines power of states to punish offences under their municipal

criminal laws. It does not address what are often considered offences under

international criminal law such as, for instance, genocide, war crimes or crimes against

humanity. These will be addressed in chapters 3 and 4 below.

5 For simplicity, I will use throughout PS for the state that wants to prosecute O, and TS for the state on whose territory the offence was committed. When these two are the same state I refer to it as S.6 The question o f S’s authority will be examined in Chapter 5 below.

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2. The Territorial Scope of S’s Power to Punish O

“by what Right any Prince or State can p u t to death, or punish an Alien, fo r any Crime he commits in their Country. T is certain their Laws by virtue of any Sanction they receive from the promulgated W ill of the legislative, reach not a Stranger.

The territorial scope of a state’s criminal law is commonly regarded as a manifestation

o f its sovereignty. This entails that a state has the normative power to prescribe

criminal rules which are binding on every person who is, for whatever reason, on its

territory.8 Crucially for our purposes, it also entails the normative power to punish

those who violate its rules within its territorial borders. I will not address the issue of

when a particular offence can be said to be committed on the territory of a particular

state. That is a complicated enough question whose consideration merits a treatment

that is beyond the object of this enquiry.9 Thus, I will normally tackle the standard cases

in which, for example, both the conduct of O and its result (e.g., V’s death) occurred

on the territory o f state S. As a legal basis for criminal jurisdiction, territoriality raises

litde controversy.10 However —or perhaps precisely for this reason— any justification for

the power to punish concerned with evaluating its extraterritorial application needs,

first, to be able to account convincingly for this basic principle.

In order to account for the territorial scope of S’s right to punish O I claim that we

need to look at the reasons that justify S holding the power to punish O in the first

place. The justification for this normative power I have proposed in Chapter 1 is based

on the claim that having a system of criminal law in force constitutes a public good that

benefits the individuals that live under it in a certain way. This proposition involves a

conceptual and a normative claim. Conceptually, it implies that there is a necessary link

7 Locke, Two Treatises of Government, §9, 273.8 On this, see section 4 o f the general Introduction to this thesis.9 The standard doctrine distinguishes between subjective and objective territoriality, and the more controversial effects doctrine. For a good discussion on this see the classical piece by Michael Akehurst, 'Jurisdiction in International Law', British Yearbook of International Law 46 (1972-1973), 145 and, more recently, the monograph by Hirst, Jurisdiction and the Am bit of the Criminal Law, chapters 3 and 4.10 See, for example, 'Draft Convention on Jurisdiction with Respect to Crime', The American Journal of International Law 29, no. Supplement (1935), 480 and Brownlie, Principles of Public International Law, 299.

85

between a legal system being in force and the power to punish offenders. From a

normative point of view, I suggested that having a set of legal rules prohibiting murder,

rape, etc. in force contributes to the sense of dignity and security o f individuals in any

particular society. Ultimately I suggested that the collective interest individuals have in

this system being in force, i.e., binding on them, is sufficiently important to warrant

conferring upon S the power to punish O. However, how does this argument account

for its territorial scope? This is simple: I suggest that S’s normative power to punish O

is justified by the collective interest of its members in having a system of laws prohibiting,

murder, rape, etc. in force.

Someone might object, however, that this argument falls short of fully explaining

the territorial scope of S’s power to punish O.11 By grounding S’s rights on the

collective interest of its members it may seem that this argument explains only why S

has a power to punish those who commit an offence on its territory against a resident of

S.12 Put differently, it would certainly be an unfortunate implication of my argument

that the residents of S have not, themselves, an interest in their criminal laws protecting

foreigners on holidays. However, this is not the case for two reasons. First, because

offences against foreigners committed in S do, as a matter o f fact, undermine S’s

criminal laws being in force, thus affecting this public good. When O murders V in S,

she puts into question the existence of S’s legal rule prohibiting murder. This reasoning

holds even if both O and V are not members of S, who happened to be accidentally on

the territory o f S (e.g., on holiday). Moreover, I believe it holds even if V is targeted

because he is not a member of S. If an English football fan is killed after a match in

Germany by German fans, this would certainly undermine the confidence o f the people

in Germany in the rule against murder being in force. This explains why states, which

are often portrayed as self-interested machines, characteristically prohibit the murder of

any person on their territory, and not only the murder o f their nationals/residents.

Indeed, we should not conflate the belief that a rule is in force with the somewhat

11 This objection is important because, as I will argue in section 6 below, it creates a significant difficulty for one o f the most influential alternative arguments for legal punishment available in the literature.12 For present purposes I treat nationals and permanent residents alike.

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different one that I, in particular; am less vulnerable to being a victim of a criminal

offence. Criminal laws, I have suggested, can ground the former belief, but not the

latter.

Secondly, this alleged difficulty is created by a rather oversimplified answer to the

question of whose interest explains S’s normative power to punish O. This collective

interest is also shared by individuals who happen to be in S accidentally, or for a very

short period of time. The interests of temporary visitors also matter.13 It is the interest

o f every individual in S that collectively grounds S’s power to punish O, not merely the

interests o f the nationals or members of S. To illustrate: Manuel is a Colombian

national. When he travels in Italy on holiday, he has an interest in people there abiding

by most of the Italian criminal laws. While walking down an alley in Rome or dining in

a festive Trattoria in Naples, Manuel has an interest in most o f Italy’s criminal laws

being in force. Although it might not be as strong —after all he will probably be out of

the country in a matter of days— this interest is similar to that of any other Italian

national or permanent resident sitting next to him. Albeit temporarily, I suggest that

Manuel’s interest is part o f the collective interest that justifies Italian courts holding a

power to punish those who violate Italy’s criminal rules. In other words, if the power to

punish offenders is grounded on the interest of certain individuals taken collectively,

there do not seem to be any grounds on which we could simply override the interest of

non-residents who are temporarily in S. O f course, permanent residents arguably have a

stronger interest in S’s criminal laws being in force over time. For the sake of simplicity,

I will keep on referring to the members of S as the holders o f the relevant interest.

This, however, should be understood with the caveat made in this paragraph.

These considerations, then, fully explain the territorial scope of the criminal law

system to the extent that it involves S holding a normative power to punish anyone who

violates its criminal law within its borders. Let us now examine whether S can claim an

exclusive right to do so, or whether other states (PS, PS2, etc.) could claim the power to

13 Indeed, this position is not only compatible but also required by the moderate cosmopolitan position I endorsed in section 4 o f the general Introduction.

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exercise their criminal jurisdictions concurrently. I suggest that extraterritorial states

(PS) are under a prima facie disability to punish offences perpetrated in TS. This claim

needs to take into consideration two relevant issues.

First, one may argue that the population in PS lacks an interest in enforcing its

domestic criminal laws on the territory of TS. That would be true in most cases, but not

in all. Clearly, the people living in Uruguay do not usually have an interest in the

Uruguayan criminal laws being in force in Sweden that is sufficiently important to

warrant conferring upon Uruguay a power to punish offences committed on Sweden’s

territory. To that extent, this argument entails that Uruguay itself lacks a prima facie

power to punish O for an offence she committed in Sweden. But this explanation only

provides for a conditional conclusion. Under certain circumstances, which will be

explored below, individuals’ living in Uruguay may have an interest in their criminal

laws being in force also in Sweden. A standard case could be when O is counterfeiting

Uruguayan currency. Hence this argument explains only why states may lack

extraterritorial criminal jurisdiction in those cases in which their members lack a

collective interest in their criminal laws being in force abroad.

The second issue we have to consider has to do with the interests o f the members

o f TS. These interests may seem more robust and far-reaching. I suggest that they are

not. In the general Introduction to this thesis I argued that states hold a right to self-

government. This right does not merely include the power to criminali2e certain

behaviours. It also entails an immunity against other states dictating and enforcing their

criminal rules on the territory of TS. This entails, e.g., that the UK has a prima facie

immunity against Sri Lanka dictating criminal rules that apply on its territory. However,

I also argued that this prima facie immunity is neither absolute nor unconditional. It is

limited, inter alia, by the interests of non-members.14 Accordingly, the interest that

explains TS’s immunity does not necessarily preclude PS holding a power to punish O

for crimes committed in TS. Where individuals in PS have a significant interest in their

14 See section 4 below.

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criminal laws being in force in TS, TS’s prima facie immunity can be outweighed by PS’s

prima facie power.15

To sum up, this section fully accounts for the territorial scope o f TS’s power to

punish.16 I have shown that TS can claim a power to punish violations of its criminal

laws when those violations occurred on its territory, regardless of the nationality of

either O or V. Also, TS holds this right exclusively in so far as other states do not have

an interest in punishing O that is sufficiendy important to override its prima facie

immunity. It is now time to turn to the extraterritorial scope of this power.

3. The Nationality Principle

The issue at stake here is whether PS has a normative power to punish O for a crime

she committed on TS, on the grounds that O is a national of PS. This basis of criminal

jurisdiction often comes accompanied by other considerations. Most commonly, it is

provided for offences that affect the security of the state17, or that are committed

against a national of PS. For the sake of clarity, I will consider cases in which the

nationality of the offender constitutes the only basis for the criminal jurisdiction of PS. I

will examine other grounds of criminal jurisdiction below, under the protective and

passive personality principles.

Akin to the principle of territoriality, this basis for criminal jurisdiction is also quite

uncontroversial under existing international law.18 In fact, it has been generally

15 A note o f caution is in order here. Just as I have argued that only a certain specific interest can explain S’s power to punish O, it is not the case that any interest that S2 may have would suffice to override S’s immunity. On this, see sections 4, 5 and 6 below.16 I cannot examine here distribution o f criminal competences within federal or multinational states such as the U.S. or the UK. Yet, I suggest that the territorial considerations that are at play internationally also apply domestically. In other words, provided that there are different legal systems in place, the argument applies to California’s power to punish offences committed on its territory and its prima fade immunity against Texas doing so. This immunity, however, would not necessarily affect federal statutes much as in the same way that TS’s immunity might not apply in cases o f international crimes.17 United States v Bowman.18 See Lassa Francis Lawrence Oppenheim et al., Oppenheim's International haw / Vol. 1, Peace (Harlow: Longman, 1992), V. Lowe ‘Jurisdiction’ in Malcolm D. Evans, International haw (Oxford ; New York: Oxford University Press, 2006), 345, and Akehurst, 'Jurisdiction in International Law'. For more cautious positions, albeit considering it uncontroversial, see Brownlie, Prindples of Public International haw, 301-302 and Antonio Cassese, International Criminal haw (Oxford: Oxford University Press, 2003), 281.

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recognized that the original conception o f law was personal, and that only the

appearance of the territorial state gave rise to the right to subject aliens to the lex loci}9

Recently, this basis of jurisdiction has been growing significandy in some states, and

some lawyers even advocate making it a general basis for criminal jurisdiction in the

UK.20 Although many countries have self-imposed restrictions on the application of

this basis of jurisdiction it is generally argued that, as a matter o f principle, there is no

rule against extending it as far as they see fit.21

Before going any further, a conceptual point is in order, namely, whether this

principle gives PS the power to punish its nationals, its citizens or its residents. In an

important early work in this area, Donnedieu de Vabres pointed out that, historically, it

was the domicile of the accused rather than her nationality which provided the basis of

this type of jurisdiction.22 However, nowadays this principle is taken to mean that states

have the right to prosecute their nationals. Assimilation of residents to nationals in this

area has been objected as wholly undesirable and is not clearly part o f existing public

international law.23 The word nationals has different meaning when used in public

international law and international political theory. Lawyers mean membership o f a

state, not of a nation. I do not need to enter this type of debate here. The nationality

principle only makes reference to membership to a state. Thus, by way o f stipulation I

will use nationals to refer only to the citizens o f a state.

I have argued that PS’s normative power to punish O is explained by the collective

interest of the members o f PS in having a system of criminal laws in force. I now claim

In article 12 b) o f the ICC Statute this basis o f jurisdiction stands side by side with the territoriality principle.19 James Leslie Brierley, 'The Lotus Case', haw Quarterly Review 44 (1928), 155-156.20 See the Sex Offenders Act 1997, Landmines Act 1998 and the Nuclear Explosions (Prohibition and Inspections) Act 1998. Also, P. Arnell, The Case for Nationality Based Jurisdiction', International and Comparative haw Quarterly 50 (2001), 961.21 Regarding self-imposed restrictions, in some countries the law requires that the offence be a crime under the law o f the state in whose territory it was committed (e.g. Egypt, see Cassese, International Criminal haw, 281). In others, it is only provided for certain particularly serious offences (e.g. France).22 Henri Donnedieu de Vabres, hes Principes Modemes Du Droit Penal International (Paris: 1928), 66-6823 'Draft Convention on Jurisdiction with Respect to Crime', 533. The only exception to this being, plausibly, stateless persons. In the Draft Convention on Jurisdiction with Respect to Crime the only persons assimilated to nationals are aliens who “discharge ... a public function which he was engage to perform for that State” or who are personnel o f a ship or aircraft o f that State’s flag (see art. 6).

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that this justification cannot accommodate the nationality principle. In short, there

seems to be no way in which PS’s criminal rules being in force require punishing O for

a robbery she committed in TS, simply on the grounds that she happens to be a

national of PS. For one thing, it seems odd to say that O has violated the laws of PS.

But even granting this proposition for the sake o f argument, the collective interest of

the members of PS in the sense of security and dignity that criminal laws provide them

does not seem to be affected by a robbery in TS. Inhabitants of PS may feel horrified

by a particular crime committed outside PS’s territory, but the sense of dignity and

security they enjoy as a result o f system of criminal rules under which they live being in

force is not undermined by these offences. This conclusion is at odds with current

international law as well as, to some extent, with common sense morality. In the

remainder o f this section I will examine the arguments put forward to justify this basis

for extraterritorial criminal jurisdiction.

Nationality-based criminal jurisdiction has been defended, for instance, on the

basis o f the proposition that the way in which a state treats its nationals is, in general,

not a matter for international law or foreigners to have a say on (unless there is a gross

violation of human rights). In Vaughan Lowe’s words, “[i]f a State were to legislate for

persons who were indisputably its nationals, who could complain?”24 This argument,

however, begs the relevant question, i.e., it assumes rather than explains what particular

interest of PS (or, more precisely, of the members of PS) is sufficiendy important to

ground O ’s liability to have punishment inflicted upon her. Likewise, it fails to take

seriously TS’s immunity against having criminal laws being prescribed on its territory by

foreign authorities. These two are precisely the issues we need to explain if we are to

suggest that an argument for the nationality principle is to hold water.

One response to the first of these questions has been: the right of PS to punish, for

example, certain sexual offences committed by its members in TS is justified by the

24 Vaughan Lowe in Evans, International Imw, 347. See also 'Draft Convention on Jurisdiction with Respect to Crime1, 519.

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possibility o f recidivism within PS.25 A first remark that needs to be made here is that,

if anything, this argument provides a justification for punishing PS’s residents and not

its nationals. It cannot explain why the UK would hold a power to punish a British

national residing in Spain for an act she committed in Spain. This argument would

therefore change the scope of this basis of jurisdiction in a way that, to some extent,

would be controversial under current international law.26 But leaving this aside, the

problem with it is that it has to justify the power to punish on the basis of

incapacitation or, to a lesser extent, the moral reform of the offender. At the level of

philosophical argument this is hugely problematic. Most legal and political philosophers

reject these normative arguments as a plausible justification for legal punishment

simpliciter. There is nothing in the extraterritorial application of criminal laws that would

override these well-established moral considerations.

In a different vein, it has been claimed that nationality constitutes an ‘evolution’

from the ‘narrow’, ‘self-interested’ territorial purposes o f the state.27 The criminal law of

England and Wales would now ‘protect’ children extraterritorially against, e.g., certain

sexual offences committed by nationals or residents of these countries.28 However, if

the extraterritorial exercise of criminal jurisdiction by PS is justified by the extra

protection awarded to these children, it is open to question on what possible grounds

this right could be limited to PS’s own nationals. Put differently, if what does the

justificatory work is the extra ‘protection’ awarded, for example, to children abroad, a

strict application of this argument would lead to the principle of passive personality,

i.e., jurisdiction based on the nationality of the victim (if victims in TS are in a

particularly vulnerable position), or eventually to universal jurisdiction, but not to the

nationality principle. To that extent, this argument can be readily rejected as a basis for

this particular principle.

25 Arnell, The Case for Nationality Based Jurisdiction', 961 and Lowe, jurisdiction’, in Evans, International haw, ?>A1.26 See text to footnote 23 above and Theodor Meron, 'Non-Extradition o f Israeli Nationals and Extraterritorial Jurisdiction: Reflections on Bill No.1306', Israel Law Review 13 (1978), 221.27 Amell, 'The Case for Nationality Based Jurisdiction', 960.28 Sex Offenders Act 1997 s7(2).

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Some further arguments try to ground this particular power on an interest other

than the interests of the members of PS. For example, it has been based on the interest

o f O in having a fair trial, or not facing capital punishment.29 This argument might

show that certain states, namely those which cannot guarantee a fair trial or which

provide for capital punishment, would lack the power to punish O.30 But it simply does

not follow from this that the state of which O is a national holds the power to punish

her. Somewhat differently, the power o f PS has been based on an interest of the

members of TS. The argument goes: TS might have an interest in not being forced to

face the option of either punishing O (and face diplomatic pressure and bad

international publicity) or simply releasing her.31 This realpolitik argument is again

based on a non sequitur. TS may have an interest in avoiding such a nasty scenario; this

would probably depend on the identity of PS and TS, as well as plausibly o f V and O.

But even if we accept that this is necessarily the case for the sake of argument, this

claim does not warrant the stated conclusion. Rather, TS’s interests seem to grant it a

power to decide whether to: a) exercise its power to punish O itself (despite diplomatic

pressure); b) simply release her; or c) have PS punish O. This interest entails that it is

up to TS, and only up to TS, to decide. Thus, this argument cannot justify PS's own

power to punish O. All it can show is that TS should hold a normative power to

authorize other states, such as PS, to punish O, and this is not the same as claiming that

PS is justified in doing so.32

Other scholars are concerned with what they call jurisdictional gaps and the need

to fight ‘impunity’. Two different scenarios are often mentioned. First, this problem

would obtain when O returns to her country (PS) after committing an offence in TS.

29 Amell, ’The Case for Nationality Based Jurisdiction', 959.30 Indeed, I will argue that states which cannot guarantee a fair trial lack the power (authority) to punish O, regardless o f what the basis o f its jurisdiction is (see Chapter 5 below). I will argue there that this issue is entirely unrelated to the extraterritoriality o f the prosecution. The question o f capital punishment is a more difficult one that, unfortunately, is beyond the scope o f this thesis.31 Amell, 'The Case for Nationality Based Jurisdiction', 960. A. contrario, suggesting that PS has an interest in punishing O to preserve its good relations with TS, see Geoffrey R. Watson, 'Offenders Abroad: The Case for Nationality-Based Criminal Jurisdiction', Yak Journal of International haw 14 (1992), 68-69. My rebuttal to both arguments is the same.32 This issue will be examined in more detail in section 6 below.

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Extradition laws in many states claim at least a right not to have their nationals

extradited.33 From a moral point of view this is of little relevance. Someone advocating

this view would need to provide an argument to show that states hold a right not to

have their nationals extradited, something which is open to doubt. Even if we grant for

the sake of argument that states do hold that right, it once again does not follow that

PS would, as a result, have the power to punish O. The fact that the members of PS

have an interest in not extraditing O that is sufficiently important to grant PS a liberty

not to do so, is simply unrelated to the question of whether they have an interest in

their state punishing her or not. These incidents are of a different order. If avoiding

impunity is so important to the members of PS, then it should simply extradite O.

A somewhat more difficult case is that in which the offence is committed on a

territory on which no state has jurisdiction (terra nullius). In effect, the nationality

principle was argued as a basis for criminal jurisdiction when O, a U.S. national, killed

V on a Guano Island.34 But if we recognize PS the power to punish O in this case on

the grounds that we have an interest in avoiding impunity, it does not follow that only

the state o f which O is a member has a right to punish her. Rather, the logical

implication of this argument is that any state would have the right to exercise criminal

jurisdiction over O, not just the state to which she belongs. Thus, the aim of avoiding

impunity simply does not explain the nationality principle either.

Finally, it is often argued that the nationality principle is based on the special

relationship that links individuals to the state o f which they are members. This

relationship is usually referred to as allegiance.35 This argument depends on what exactly

this relationship amounts to. A first consideration that needs to be made here is that

33 Some states, such as most European countries, go further and claim to be under a duty not to do so. See Christopher L. Blakesley, 'A Conceptual Framework for Extradition and Jurisdiction over Extraterritorial Games', Utah Law Review 1984 (1984), 709.34 Jones v United States (1890).35 Eg. Blackmer v United States (1932) and United States v King (1976) quoted in Watson, 'Offenders Abroad: The Case for Nationality-Based Criminal Jurisdiction', 68. If this were the only justification for the right to punish in these cases, it seems that this would exclude the practice o f some states that claim jurisdiction over O even if she acquired her nationality after they committed the crime (see art. 5 o f the French Code dins fraction Crimnelle, quoted in 'Draft Convention on Jurisdiction with Respect to Crime', 522.

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none of the well-known arguments defending the intrinsic ‘ethical significance’ of

nationality seem to entail the application of PS’s criminal laws to its nationals abroad.36

These arguments are meant to explain why states have the duty to give priority to their

own nationals in matters such as the protection of their interests or, at least, the right to

do so.37 Therefore, they do not directly support the principle of nationality. If anything,

they may provide an argument for the principle of passive personality, i.e., the right of

PS to protect V (wherever she is) by punishing those who violate her rights. Claims of

that kind will be examined below.

Alternatively, we may build this allegiance relationship under the terms of a ‘mutual

exchange of benefits’ scheme.38 Defenders of this argument would suggest that because

O receives protection and other benefits from PS, she also has to bear the burdens of

her membership to PS. A first objection against this argument is that it does not seem

to apply to every state. Indeed, not every state seems to confer enough benefits upon

their members so as to claim from them a duty to bear their burdens while abroad.39

Members of PS who had to flee on humanitarian or economic grounds, for example,

would seem to be excluded from this argument. Crucially, however, even if O is under

certain obligations towards PS, this approach still begs the crucial question, namely,

what is the interest of the people in PS that justifies O being under a duty to comply

with PS’s criminal rules abroad.

361 borrow the expression from David Miller, 'The Ethical Significance of Nationality', Ethics 98, no. 4 (1988).37 On this, see standardly David Miller, On Nationality (Oxford: Oxford University Press, 1995); Samuel Scheffler, 'boundaries and Allegiances : Problems of Justice and Responsibility in Liberal Thought (Oxford: Oxford University Press, 2001); Yael Tamir, Liberal Nationalism (Princeton, N.J: Princeton University Press, 1993).38 Miller, On Nationality, 61. This is, roughly, how fair play theories o f punishment justify this power. See, e.g., Richard Dagger, 'Punishment as Fair Play', Res Publica 14 (2008). They too are liable to this line o f criticism.39 Interestingly, until well in the 20th Century many European powers had ‘national courts’ in the territories o f other states (e.g., Persia, China, the Ottoman Empire, etc.) to try their citizens for crimes committed there. This jurisdiction, however, was based on capitulation treaties and not on a right held by the European powers themselves. See W. E. Grisby, 'Mixed Courts o f Egypt', Law Quarterly Review 12, no. 3 (1896), 252 and A. M. Latter, 'The Government o f the Foreigners in China', Law Quarterly Review 19, no. 3 (1903), 316.

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Consider the following case: O travels to TS and robs a bank. When he is back in

PS, he is prosecuted under PS’s criminal law and punished. Now, it is unclear here what

is PS’s interest in O respecting PS’s laws abroad. Certainly, the power to punish O is

not based on PS’s members enjoying the sense of dignity and security that their system

of criminal laws provides them. O ’s act has not undermined PS’s criminal rules or the

sense of dignity and security of the people in PS in any meaningful way. Other interests

that PS may put forward would collapse into unappealing justifications for the power to

punish (incapacitation or moral reform), or into some form of universal jurisdiction

(deterrence or retribution).40 In other words, I contend that unless there is a specific

element in the offence itself (e.g., its effects or purpose) that affects the public good

that individuals in PS themselves enjoy, PS would lack the power to enforce its criminal

rules against O.

A defender of the allegiance argument may reply that individuals in PS would at

least have an interest in O not being able to make fraude a la loi o f PS, i.e., go abroad to

do something criminalized at home. This argument, again, seems not to stand on the

grounds of the nationality o f the offender but of her residence. But leaving this issue

aside, it might seem persuasive. However, I suggest that it gets its intuitive plausibility

from something other than the nationality o f the perpetrator or, for that matter, her

permanent residence. Suppose O goes with V to the border between PS and TS, tricks

her into stepping across into TS, beats her up, and then both return to PS. Would not

individuals in PS have an interest in seeing O punished in order to be reassured that the

laws are effectively in force? I suggest they would. Individuals in PS have an interest in

not being tricked or forced into a position in which PS lacks the power to punish O.

Their sense of dignity and security while in PS requires this. However, this has nothing

to do with O ’s nationality or her permanent residence. The rationale for conferring PS

the power to punish O would hold even if both O and V were tourists on holidays.

Accordingly, this argument cannot ground the nationality principle. Rather, it seems to

rest on territorial, or quasi-territorial, considerations.

40 See section 6 below on deterrence and retribution.

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I conclude, therefore, that as a basis for criminal jurisdiction the nationality

principle is altogether unjustified. Moreover, I have contended that most of the

arguments that are usually put forward to defend this widely accepted legal right either

beg the relevant question or ultimately justify the jurisdiction of PS on other more

controversial grounds, such as universality or passive personality.

4. The Principle of Passive Personality

Let us now examine whether PS has the moral power to punish O for a crime she

committed abroad on the grounds that V is a member of PS. This basis of criminal

jurisdiction is among the most contested ones in contemporary International Law.41 It

is the only regular basis o f extraterritorial criminal jurisdiction that was not included in

the 1935 Harvard Draft Convention on Jurisdiction with Respect to Crime. However, it

has been increasingly adopted by states.42 Although there currently seems to be a trend

to endorse it, this trend relates to crimes under international law, such as genocide. It

does not have to do with the extraterritorial application of a state’s municipal criminal

law.43 In any event, there currently seems to be no rule under international law

prohibiting this basis for criminal jurisdiction.

Does the justification for punishment outlined in this chapter endorse the passive

personality principle? The question is, once again, whether the members of PS have a

41 Oppenheim says it is inconsistent (Oppenheim et al., Oppenheim's International Law / Vol. 1, Peace, 468). It was heavily criticized by Judge Moore in the Lotus case, and even there the majority, which accepted that Turkey had the right to punish Mr. Demons, did not fully endorse the principle o f passive personality.42 The Harvard Research project (1935) contains a list o f 28 states that have adopted this principle; many o f them still endorse it (see ibid, 472). France, for example, objected vociferously against the application o f this principle by Turkey in the Lotus case. Before 1975, it recognized jurisdiction on this basis but it was rarely applied. To do so it required a decision o f the Ministere Public that it was in the public interest to do so. This occurred when the offence had some territorial effects or endangered the security o f the state. To that extent, it is hard to say that jurisdiction was based on passive personality alone. France’s Criminal Procedure Law provides for its criminal jurisdiction over crimes (as opposed to delits) committed extraterritorially against its nationals (art. 689 o f its Code the Procedure Penal referring to art. 113-7 o f its Code Penal). The US has relied (partially) upon this principle in US v Yunis (No. 2), to try a Lebanese national for hijacking a Jordanian airliner in which US citizens were travelling, even if it had objected to Mexico exercising extraterritorial criminal jurisdiction on this basis in the Cutting incident o f 1887.43 Lowe, ‘Jurisdiction’ in Evans, International Law, 351. See in particular, the Joint Separate Opinion o f Judges Higgins, Kooijmans, and Buergenthal in the Arrest Warrant case, at 11.

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collective interest in their criminal laws being in force abroad vis-a-vis offences

committed against a co-national. In the previous section, I have argued that individuals

in PS lack an interest in having PS’s criminal laws enforced against them or their co­

nationals (or co-residents) abroad. The opposite proposition, however, might seem

promising. I suggest it is nothing of the kind. Advocates of the passive personality

principle would need to show that, in fact, O ’s act puts into question the bindingness of

the criminal rules in PS. This is not an easy task. If V, a German citizen, is assaulted by

a group of infuriated monks while visiting a Tibetan monastery in the Himalayas, this

would hardly affect the confidence of individuals in Germany in the German criminal

laws being in force.

More generally, I suspect that it is not even true that German citizens abroad have

an interest in the German criminal law being in force extraterritorially that would be

sufficiently important to confer upon Germany the power to punish O in this type of

cases. The reason for this is, in short, that German criminal law cannot provide abroad

the benefits that justify Germany’s criminal jurisdiction at home. An example will

clarify my point. While walking through an alley in Buenos Aires it would be awkward

for a German citizen to feel that his rights are to some extent granted by the German

criminal law. This would hold, I suggest, even if the German criminal law system did

provide, as a matter of law, for extraterritorial criminal jurisdiction on the grounds of

passive personality. This is because the power to punish O is explained here by

reference to a public good. This public good benefits the individuals within a particular

territory. Because of the features of this public good, it cannot be enjoyed by the

members of PS extraterritorially. In fact, this is the case with most public goods offered

by PS, such as public health or transport. While V is abroad, the only system of

criminal law that can contribute to her (relative) sense of dignity and security is the

criminal law of the territorial state. This is so, I suggest, at least when we refer to

municipal offences. It therefore follows that PS would lack a power to punish O

extraterritorially on the grounds that one of the victims is a member o f PS.

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But what if there is no territorial state that provides this public good? Indeed, there

are several places in which no territorial system of criminal law is in force. Cases that

come to mind immediately are Antarctica or some small island in the middle of

international waters.44 Would PS have a power to punish violations to her criminal rules

extraterritorially in these circumstances? To answer this question we have to examine,

once again, whether the members of PS have a collective interest in their criminal law

system being in force in those areas where no territorial system is in force. I submit that

people in, e.g. Japan, would lack an interest in their criminal law system being in force

in Antarctica sufficiently important to ground O ’s liability to being punished. This is

because the fact that a Japanese national is killed there does not seem to affect the

sense o f dignity and security that the Japanese enjoy in Japan. That killing, as I argued

above, does not affect the Japanese rules against murder being in force. Moreover, the

Japanese criminal law cannot really be in force in Antarctica, at least while it maintain its

current legal and demographic situation. This does not mean that, absent a territorial

authority, no authority should have the power to punish in Antarctica. It only entails

that the fact that V is a national of PS does not seem to do any justificatory work in

terms o f providing PS, in particular, a power to exercise its criminal jurisdiction on terra

nullius.

It is time to tackle the arguments proposed by those who defend the ethical

significance of nationality. These arguments generally endorse the proposition that

individuals have certain special obligations towards their co-nationals.45 Although they

vary with regard to the duties each one gives rise to, it seems safe to assume that all of

them entail that PS has a special obligation to protect the interests o f its nationals. This

special obligation implies that it also has a right to do so.46 Now, if the nationality bond

intrinsically requires PS to fulfil these special duties, it seems that the proponents of

special obligations to co-nationals are committed to extending this protection abroad.

44 See Jones v United States (1890).45 The standard arguments are made by Miller, On Nationality; Scheffler, Boundaries and Allegiances, 60, 79; Tarim, Liberal Nationalism, 137.46 This argument is also used in Cassese, International Criminal Law, 282.

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So far, so good. However, to assert a power to punish on the basis of this proposition

is a non sequitur. The liberty to protect V cannot per se entail a power to punish O. In

short, we are usually ready to recognise S’s power to punish O for a homicide even if

V’s rights cannot be protected anymore.47 But, to go from protection to punishment a

further argument is needed. The only way in which we could meaningfully bridge this

gap is to say that legal punishment is justified by its deterrent effects or eventually by

incapacitation.

I have argued against deterrence as a justification for the power to punish O in the

previous chapter. In section 6 below I will argue that this justification leads to assigning

the normative power to punish O to every possible authority, that is, to universal

jurisdiction. As for incapacitation, I doubt that it is considered a serious explanation for

the moral power to punish O. As it is commonly suggested it violates O ’s status as a

person by treating her merely as a tiger. Yet, the problem for our purposes is that it

leads to the same problematic jurisdictional implications. After all, what difference does

it make where O is kept as long as she is incapacitated? I argue that the right to protect

one’s fellow nationals does not lead to jurisdiction based on passive nationality. It

collapses into a universally held power to punish O.

5. The Protective Principle

The protective principle is invoked when PS claims criminal jurisdiction to punish O

for offences against its security, integrity, sovereignty or important governmental

functions committed on the territory of TS.48 It is beyond the scope o f this enquiry to

clarify the scope of this principle, i.e., which offences do in fact meet the test of

affecting these goods or which goods in particular do warrant PS having jurisdiction on

47 On the contingency of this argument, see section 3.1 in Chapter 1 above.48 See Christopher L. Blakesley, "Extraterritorial Jurisdiction," in International Criminal Caw, ed. M. Cherif Bassiouni (Ardsley, N.Y.: Transnational Publishers, 1998) 54 and Jackson Nyamuya Maogoto, 'Countering Terrorism: Frome Wigged Judges to Helmeted Soldiers — Legal Perspectives on America's Counter-Terrorism Responses', San Diego International Caw Journal 6 (2004-2005), 258. This principle has also been extended to the ‘protechon’ o f the interests o f members o f military allies; France and the Communist countries constitute regular examples o f this (see Akehurst, 'Jurisdiction in International Law', 159).

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these grounds. I shall concentrate for present purposes on certain offences for which

the principle is standardly invoked, such as those committed against PS’s governmental

authorities, its military forces, counterfeiting of currency or public documents issued by

the state. It seems safe to argue that currently this basis for criminal jurisdiction is

reasonably well established under international law.49 It should be noted, however, that

states have had diverging attitudes towards this principle. While Continental Europe

and Latin America have often advocated this basis of jurisdiction, the Anglo-American

world has traditionally been reluctant to accept it. However, more and more the US and

the UK have tended to come to terms with it and use it for their purposes.50

There are several arguments that purportedly justify PS’s criminal jurisdiction on

grounds o f ‘protection’. Among the most popular ones are self-defence, deterrence, and

protection stricto sensu. I will not deal with them here in any detail. Rather, I will make

my own argument for that conclusion. The reason for this is that although I disagree

with the specific consideration on which they rest, I agree with the conclusion they

reach.51

I have argued that the justification for PS’s power to punish O is based on the

collective interest of the members of PS in having a system o f criminal laws in force. This

49 Art. 8 o f the 1883 the Institute o f International Law adopted a resolution which contained the following principle (in Oppenheim et al., Oppenheim's International Law / Vol. 1, Peace, note 28 at 470). See also the 'Draft Convention on Jurisdiction with Respect to Crime', 543 and 551, for a list o f 43 states that provided for it either in their legislation in force or in their projected criminal codes. More recendy, see art. 694 o f the French Code de procedure penal. The U.S.’s Omnibus Diplomatic Security A ct o f 1985 is broadly based on the protective principle, although it does rely also on passive personality. For an exception, see Manuel R. Gartia-Mora, 'Criminal Jurisdiction over Foreigners for Treason and Offences against the Safety o f the State Committed Upon Foreign Territory', University of Pittsburgh Law Review 19, no. 3 (1957-1958), 567.50 At least until the late 1950s, the UK and the US both seemed to have rejected this basis o f jurisdiction unless a bond o f allegiance between the offender and the sovereign was found. Treason seemed to have been the overarching concern. I believe that Joyce v DPP should be understood as an example of this principle being relied upon by a British Court. Hirst rejects this understanding of Joyce (Hirst, Jurisdiction and the Am bit of the Criminal Law, 49). Although I disagree with him on this, this issue is beyond the scope o f the present chapter.51 On deterrence as a justification for the protective principle see Recent Developments, 'Protective Principle o f Jurisdiction Applied to Uphold Statute Intended to Have Extra-Territorial Effect', Columbia Law Review 62, no. 2 (1962), 375. Self-defence, e.g., was articulated in the Bayot case by the French Court o f Cassation (1923) and its decision in the Fomage case (1873). For a careful, though not necessarily critical, treatment of the other arguments see Garcia-Mora, 'Criminal Jurisdiction over Foreigners'.

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is because, or so I claim, this system is a public good that provides the members o f PS

with a relative sense of dignity and security thereby contributing to their well-being.

Thus, the relevant question is whether the members of PS have a collective interest in

their criminal laws being in force extraterritorially vis-a-vis certain offences against, for

example, the security and political independence of the state. I contend they do. Let me

illustrate this point:

The scene was Washington, November and December 1921. The world's naval

powers had come to negotiate limits to shipbuilding to prevent a runaway naval

race and save money. The point in contention was the ratio of tonnage afloat

between the three largest navies, those of Britain, the United States, and Japan. The

US proposed a ratio o f 10:10:6. ... But the Japanese were unhappy and would not

budge from their insistence on a 10:10:7 ratio— Calculations difficult to

summame here meant that Western navies would be at a disadvantage in Japanese

waters with a 10:10:7 ratio, but would have ships enough to dominate even far

from home ports if they could insist successfully on 10:10:6. ... Two years earlier

after months of work [Herbert O.] Yardley had solved an important Japanese

diplomatic code; ... on December 2, as the naval conference struggled over its

impasse on the ratio, a copy of a cable from Tokyo was delivered to Yardley's team

and deciphered almost as quickly as a clerk could type. The drift of the message ...

was an instruction to Japan's negotiators to defend the ratio tenaciously, falling

back one by one through the four positions only as required to prevent the

negotiations from breaking down entirely. As Yardley later described..., position

number four was agreement to the 10:10:6 ratio. ‘Stud poker/ Yardley wrote, ‘is

not a very difficult game after you see your opponent's hole card.’ So it proved. On

December 12 the Japanese caved."52

This act o f espionage is as harmful to Japan’s interests (and those of the Japanese) as

52 Taken from T. Powers, 'Black Arts', New York Review of Rooks 52, no. 8 (2005).

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acts of espionage against Japan on its own territory. In other words, it makes little

difference where the secret message was intercepted. But then, if Japan has the power

to punish those who carry out acts of espionage against Japan on its territory, it must

follow that it would have to hold this power extraterritorially. Unlike cases o f theft or

murder against V, espionage against PS, even if carried out on TS, will affect the

interests of the members of PS in PS. For them to be able to enjoy the thin protection

that that rule being in force provides, the rule has to be binding on O irrespective of

where she commits the act of espionage. Moreover, this argument does not collapse

into a wider basis of extraterritorial jurisdiction. The members o f PS have an interest in

PS prosecuting and punishing espionage against PS, but not against PS2. In our

example, China would be disabled from prosecuting Mr. Yardley. Finally, PS would

hold this power regardless of whether TS decides to prosecute O itself or not.

It should be noted, however, that this basis of criminal jurisdiction has not been

free from criticism. The underlying preoccupation focuses on the rights of those

individuals subjected to this type of prosecution. On the one hand, it has been argued

that these trials will be necessarily biased or politically conditioned.53 This objection,

however, affects only some of the offences that usually give rise to the protective

principle, but not necessarily many others such as counterfeiting currency or public

documents, or even perjury to the detriment of national authorities abroad. More

importantly, perhaps, even with regard to those offences for which this objection may

have some bite, such as treason, espionage or crimes with a political element in general,

the difficulty it creates has nothing to do with the extraterritorial character of the

prosecution. Rather, it affects this ltind of trial, period. The Dreyfus affair in late 19th

Century France and, more recendy, the trials against Mossaui in the U.S., and members

o f ETA in Spain illustrate this neady.54 Ultimately, however, this type o f consideration

does not undermine the interest that justifies holding the power to punish O, nor does it

present a countervailing interest of sufficient entity to provide O with an immunity

53 Garcia-Mora, Criminal Jurisdiction over Foreigners'.54 On the ETA trials and its complaints see, e.g., the Adolfo Arai^ Ylamariqe et al. by the Spanish Constitutional Court (1999).

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against S’s power. Rather, it affects the conditions that any given body (be it territorial

or extraterritorial) must fulfil in order to claim, itself, the normative power to punish O.

In other words, lack o f impartiality affects the moral credentials of S’s authority to

punish O, not the fact that it has a valid reason to do it.55

On the other hand, it has been argued that this type o f jurisdiction lends itself to

inadmissible extensions.56 This is historically true. Famously, Professor Jessup cites a

case in which, during the Nazi period, a German court approved the prosecution in

Germany of a Jewish alien who had extramarital intercourse with a German girl in

Czechoslovakia on the grounds that it affected the “purity o f the German blood.”57

Salman Rushdie’s death fatwah constitutes another powerful illustration of this danger.

Without going that far, many provisions that invoke the protective principle are

unacceptably vague. For example, the Hungarian Penal Code at some point provided

for extraterritorial jurisdiction over any act against ‘a fundamental interest relating to

the democratic, political and economic order o f the Hungarian People’s Republic’.58 As

it is often said, however, the fact that PS can abuse a right it has is hardly a conclusive

argument against PS holding that right in the first place. These examples show cases of

blatant abuse of this doctrine, but they say very litde about its application to offences

that do in fact affect the security or political independence of PS.

Finally, one should ask whether PS’s laws being in force abroad can provide the

members of PS with any sense of dignity and security in this type of case, for I have

argued that the public good that punishment provides benefits the individuals on the

territory of the state where they happen to be. For instance, I argued that a German

citizen, while abroad, cannot enjoy the sense of dignity and security provided by the

German criminal laws, but rather, it is the criminal laws of the country where she is

55 See Chapter 5 below.56 Garda-Mora, 'Criminal Jurisdiction over Foreigners', 583.57 Philip C. Jessup, Transnational Law (New Haven, Conn.: Yale University Press, 1956), 50.58 In Akehurst, 'Jurisdiction in International Law', 58.

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(TS) being in force that can contribute to her sense of dignity and security.59 Would

that not undermine the argument I make in this section?

I suggest it would not. In this case we are not considering the sense o f dignity and

security that the German criminal laws provide to, e.g., Germany’s Chancellor abroad.

The issue at stake here then is not her sense of dignity and security. In effect, Angela

Merkel herself, on a visit to Patagonia, would have an interest in Argentine?s criminal

laws being in force. This will contribute to her sense of dignity and security. Rather, the

protective principle is explained by the sense of dignity and security that a criminal

prohibition provides to the German people in Germany regarding their Chancellor, while

she is abroad. The Germans have, themselves, an interest in making it their business to

punish anyone who commits such an act, irrespectively o f where this act takes place

and of the concurrent power held by the territorial state. Their sense of dignity and

security with regards to their Chancellor, I submit, German criminal law is perfecdy

able to contribute to. Finally, the reason why the Germans might have an interest in

Germany punishing such act has to do with Merckel’s political status, not with her

nationality. They would have the same interest if their Chancellor happened to be

Austrian or even Peruvian. It is the position V holds in PS’s government that explains

PS ’s power to punish O.

6. Two Possible Objections

Before concluding this chapter, I want to examine two possible objections to the

account of extraterritorial punishment for domestic offences presented here. On the

one hand, many people would find it simply too restrictive. They will protest, for

instance, that by preventing states from exercising their criminal jurisdiction

extraterritorially on grounds other than protection, this approach would preclude joint

efforts by states to fight certain forms of criminality. This is particularly sensitive in a

world in which the forces of globalization seem to have bolstered transnational crime.60

59 See the section on passive personality above.60 E.g., Misha Glenny, Mcmafia : A. Journey through the Global Criminal Underworld (New York: Knopf Books, 2008).

This, however, is not what this argument entails. True, it warrants putting PS under

a prima facie disability to punish O for an offence she committed outside its territory

unless it threatens its security or political independence. However, I have suggested that

it might be the case that the members o f TS have an interest in PS being able to

enforce TS’s criminal laws.61 I now contend that this interest would be sufficiently

important to warrant conferring upon TS the normative power to authorize PS to do

so. In other words, the interest o f individuals in TS not only warrants conferring on TS

a power to punish O for an offence she committed on its territory. It also explains TS’s

power to authorize an extraterritorial authority to do so, and thereby waive its

immunity against having foreign criminal rules enforced on its territory. But this is

simply not the same as arguing that PS, itself has the power to punish O. My argument

entails only this former proposition.

Let me put this in more concrete terms. Under the argument advocated here, states

hold a normative power to make treaties granting each other extraterritorial criminal

jurisdiction for acts committed on their respective territories. The Conventions o f the

Council of Europe on Cybercrime (2001) and on Action against Trafficking in Human

Beings (2005), and the 2003 UN Convention against Corruption are but a few examples

of this. In addition, states can authorize, as they often do, a particular state to exercise

jurisdiction on its territory in the context of an extradition treaty; and they can either

provide PS with a full power to exercise extraterritorial criminal jurisdiction or subject it

to certain limitations.62 Finally, states have a power to grant jurisdiction to foreign states

for any sort of domestic crime they see fit. Thus, I willingly admit that, in Chief Justice

Taft’s words, some offences “are such that to limit their locus to the strictly territorial

jurisdiction would be greatly to curtail the scope and usefulness o f the statute...”.63

However, this does not warrant PS’s having extraterritorial criminal jurisdiction per se.

61 See the section on the nationality principle above.62 Cryer argues that this regime applies to the terrorism conventions (Robert Cryer, Prosecuting International Crimes : Selectivity and the International Criminal Law Regime (Cambridge: Cambridge University Press, 2005), 80-81). I will advocate a similar understanding o f terrorism in Chapter 3.6 below.63 United States v Bowman, at 98. Although in this case the court left open the question o f whether this basis o f jurisdiction applied also to aliens, the reasoning seems to lead inevitably to that conclusion.

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My contention is that it is up to TS, and only up to TS, to decide on whether PS will

hold the power to punish O for an offence she committed on the territory o f TS. This

explanation thereby accommodates what we may call internationalized criminal law, i.e.,

domestic criminal laws that are enforceable extraterritorially by domestic courts on the

basis of an agreement.64

It is now time to tackle a second line of criticism. The claim is that there might be

other justifications for legal punishment that would be, overall, more consistent with

the way in which international law currently regulates extraterritorial punishment.

Accordingly, they would probably be preferred over the argument advocated here for

their explanatory power. This is not the case for two reasons. First, most considerations

on which these justifications rely lack any clear connection to the territorial scope of

the power to punish. And secondly, they are usually unable to account for the specific

considerations on which these jurisdictional bases are grounded. This is true o f most

consequentialist and deontological considerations such as deterrence, incapacitation,

moral reform, retribution, etc. Regardless of their interplay within each theory, it is

simply not true that they are more attuned with our current practices. Rather, most

justifications for legal punishment tend to advocate broader jurisdictional rules than

those provided for under international law today.65 I suggest they they risk collapsing

into universal jurisdiction. Moreover, I will argue below that when certain

considerations are introduced to limit the extraterritorial scope of S’s power to punish,

these theories end up being too restrictive or in any event less attuned with some o f the

core features of the distribution and scope o f states’ power to punish as currently

regulated under international law.

But first I need to show that the argument advocated in this chapter does not lead

to any of these unfortunate implications. I have argued that PS’s power to punish O is

justified by the collective interest of the members of PS in having in force a system of

64 This proposition, however, does not cover ‘purely’ international crimes such as genocide, war crimes or crimes against humanity. On this, see chapters 3 and 4 below.65 Justifications for punishment are notoriously complex and varied. I simplify here the literature in a way that takes into consideration at least some o f the most relevant considerations on which contemporary justifications rely.

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laws prohibiting, e.g., murder, rape, etc. The question is thus, once again, whether the

members of PS have a collective interest in their domestic criminal laws being in force

universally. From the arguments stated so far it should be clear that this is not the case.

When discussing the nationality and passive personality principles I claimed that there

seems to be no way in which Finland’s criminal rules being in force requires punishing O

for a robbery she committed in Nepal. For one, it seems odd to say that O has violated

the laws o f Finland. But more importantly, I suggest that the sense of security and

dignity that Finnish criminal laws being in force provides individuals in Finland is not

affected by a robbery in Nepal. Indeed, the members o f Finland may feel sympathetic

to the victims of a crime committed elsewhere, but the system of criminal rules under

which they live is not put into question by that offence. Therefore, Finland would

simply lack the power to punish O for a domestic offence on universality grounds.

How would a deterrence-based theory analyse this situation? As argued in Chapter

1, the central claim on which deterrence is grounded is that punishment is justified as a

means o f protecting individual’s rights and other valuable public goods by deterring

potential offenders. It is the protection provided that justifies the suffering inflicted

upon O. Regardless of whether we can limit some of its unappealing implications by

introducing deontological considerations, deterrence seems inevitably attached to the

following reasoning: the ‘more’ punishment is exacted, the stronger the deterrence

effect o f criminal law would be and, as a result, the fewer violations of these rights and

goods would obtain. In particular, the deterrent effect has been said to depend on the

certainty, severity and celerity o f the punishment.66 It surely seems that allowing every

state to exercise their criminal jurisdiction over any given offence will contribute to the

certainty o f the punishment. More importandy, perhaps, it would contribute to the

perceived certainty. It is obviously beyond the scope of this enquiry to even begin to

consider how strong this extra deterrent effect would be. I suspect that will depend on

the type of crimes and the type of offenders. Shoplifting and money-laundering may

66 Jeremy Bentham, The Rationale of Punishment (London,: 1830), chapter VI.

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well be differently affected.67 In any event, if we accept that there will be some extra

deterrence, any justification that relies on deterrence would be committed to granting

every state the power to punish O. This surely would not prove it wrong but it is hardly

an implication their advocates would be prepared to endorse.

O f course, the consequentialist theorist might respond that this would be too

quick. Deterrence is only one consideration that must be included in a broader

calculation o f utility, i.e., we need to balance it against other countervailing

considerations, such as for instance the friction that the exercise o f universal

jurisdiction for domestic offences would create between states. With this further

consideration in mind, we may admit that a consistent consequentialist would be able to

deny that deterrence is committed to conferring upon states a power to punish O that

is universal in scope.

This restatement is certainly more plausible, but I suggest it is ultimately

unconvincing for two reasons. First, although successful in restricting the

extraterritorial scope of the power to punish, this move may end up being too

restrictive. For instance, if avoiding international friction overrides deterrence in the

overall calculus of utility, it follows that the UK would be unjustified in punishing

Russian agents for the alleged murder of Litvinenko, which was perpetrated in central

London.68 This by itself, casts some doubts on how successful this restatement

ultimately is; the doubts grow when we take into consideration another important

feature of the right to punish.

Indeed, my second point against this more elaborate version of deterrence has to

do with what I consider to be, ultimately, an advantage o f the language of rights over

unfettered consequentialism. In short, if the balance between conflict avoidance and

deterrence is in favour of the former, the consequentialist would be committed to the

view that S is unjustified in punishing O. By contrast, to say that S holds the power to

67 I leave aside, for present purposes, the issue o f how this would affect acts that are considered offences in S but not in S2, a standard example being that o f abortion. I suspect that advocates of deterrence would have to argue in favour o f S having universal jurisdiction over this type o f acts as welL68 For good coverage o f this affair see, generally, http://topics.nytimes.com / top/reference/timestopics/ people/1/ alexander_v_litvinenko/index.html.

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punish O means that it is up to S, and only up to S, to decide whether to prosecute O,

even at the expense of creating friction with S2. Thus, the rights-based account I

endorse is able to explain an important feature of the current practice of legal

punishment, namely, that provided that individuals in S hold a sufficiently weighty

interest in S punishing O, this confers upon S the right to decide whether or not to

punish a particular offender, even when this would lead to a suboptimal level of utility.

On the basis o f these two considerations, the argument I advocate is more attuned with

some o f the central features of the current institution of legal punishment than the

revised consequentialist argument.

Interestingly, retributivist justifications for legal punishment seem to face a similar

difficulty. The central tenet o f retributive justifications for legal punishment is th a t‘S is

justified in punishing O because O deserves to be punished’. A distinction is warranted

here: some retributivists argue that this proposition only explains why it is permissible to

punish O.69 In the language of rights I have been using so far, this argument explains

why O lacks a claim-right not to be punished. It does not explain why PS has the

normative power to do so. This version of retributivism is not committed to universal

jurisdiction but it does not, either, provide a complete justification for the institution of

legal punishment. To that extent, it has litde to say about the issue at hand.

A second type o f retributivist suggests that desert is also a sufficient condition for

conferring upon PS the power to punish O. I take issue with this claim; regardless of

what is the precise explanation of the propositions ‘S has the power to punish O

because O deserves to be punished’ or ‘inflicting punishment to the guilty is

intrinsically good’, they seem to warrant the conclusion that PS should have the power

to punish O irrespective of where the offence was committed. This follows, at least, as

long as retributivism is not able to qualify that tenet by claiming that O deserves to be

punished by X . But retributivists characteristically do not take that approach. Take for

example Ted Honderich’s claim that the truth in retributivism is that punishment is

69 McDermott, The Permissibility o f Punishment1.

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justified by grievance-satisfaction.70 Arguably, to the victim and all those who

sympathise with him it would make litde difference, in terms of grievance satisfaction,

just which state does in fact punish O, as long as O is effectively punished. It seems,

then, that most retributivists will also be committed to defending PS’s holding criminal

jurisdiction regardless o f where the crime was committed.71 Moreover, the nationality

of both offender and victim seem entirely unrelated to the reason why PS holds the

power to punish O.

In the remainder of this section I shall concentrate on two arguments that may

provide a better answer to this problem: von Hirsch and Ashworth’s liberal argument

for legal punishment and Antony D uffs influential communitarian approach.72 von

Hirsch and Ashworth see punishment as mainly explained in terms of censure, though

their justification is supplemented by an element o f deterrence. Deterrence, as we have

seen, cannot help them circumscribe the scope o f S’s power to punish. On the

particular issue at stake here their argument goes as follows: a) offences are moral

wrongs; b) by censuring the offender, punishment provides recognition of the

conduct’s wrongfulness; c) this recognition should be made by a public authority and on

behalf of the wider community, because it relates to basic norms of decent interaction among

individuals;73 d) the state is, so the argument goes, the only body capable of providing

such public valuation of O ’s conduct.74 The main difficulty their argument faces is that

it does not identify the wider community on whose behalf censure should be conveyed.

This may be because their main underlying concern is to establish that legal punishment

70 Honderich, Punishment: The Supposed Justifications, 233-234.71 In effect, Nozick’s influential argument that punishment connects the offender with ‘correct values’ will be liable to this charge. See Robert Nozick, Philosophical Explanations. And so would be M. Moore’s claim that the criminal law is to ‘attain retributive justice’ by ‘punish[ing] all and only those who are morally culpable in the doing o f some morally wrongful act’. See Moore, Placing Blame : A. Theory of Criminal Taw, 33-35.72 See, respectively, Andrew von Hirsch and Andrew Ashworth, Proportionate Sentencing : Exploring the Principles (Oxford: Oxford University Press, 2005) and Duff, Punishment, Communication, and Community.73 They refer here to citizens rather than individuals (von Hirsch and Ashworth, Proportionate Sentencing: Exploring the Principles, 30). However, this cannot be meant in any meaningful way. Otherwise, one would have to infer from this argument that as long as the ‘indecent’ interaction is towards an alien, the criminal law would have nothing to say on this. Their own liberal stance would most certainly be inconsistent with that proposition.74 ibid, 29-31. Emphasis added.

I l l

is the business of the state rather than of private individuals. However, what it means is

that they fail to explain which state it is the business of. von Hirsch and Ashworth

consider themselves conventional liberals. The community they seem to have in mind is

that of a group of individuals who share some basic norms of decent interaction. But

then this community would have to include every individual worldwide. After all, most

moral wrongs do not depend upon territorial boundaries or political allegiances. On

these grounds, it would be up to them to explain why PS would not be in a position to

provide a public valuation o f O ’s offence perpetrated in TS. For both PS and TS’s

decision would amount to a public recognition of the conduct’s wrongfulness. If, as

they say, the disapproving response to the conduct should not be left to victims and

others immediately affected, they would need to provide an argument explaining why it

should have to be left to the state on whose territory the offence was perpetrated.

By contrast, I suggest D uffs communitarian theory of punishment does not

necessarily collapse into universal jurisdiction. Duff sees punishment as a secular

penance whose main purpose is to communicate censure to moral agents. He is

therefore very much concerned with being able to reach the offender’s moral

conscience. I will not examine the soundness of this argument here.75 My main interest

is in appraising D uffs position in the light o f extraterritoriality. For punishment to

reach O ’s moral conscience, PS needs to have the moral standing to censure her for

that conduct. For PS to have the relevant moral standing, it must fulfil two conditions.

First, it must have the appropriate relationship to O, or to her action in question.76 This

implies the existence of a political community on behalf of which punishment is

imposed, i.e., a linguistic community that shares a normative language and a set of

substantive values, sufficient to render mutually intelligible the normative demands that

the law makes on its citi2ens. Secondly, PS must not have lost that standing as a result

o f some (wrongful) previous dealing with O.77

75 On this see the interesting exchange between D uff and von Hirsch in Duff, Punishment, Communication, and Community, von Hirsch, Censure and Sanctions.76 On this particular issue see my discussion o f D uffs argument in Chapter 4 below.77 This aspect o f D u ff s position is discussed in some detail in Chapter 5, section 4, below.

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D uffs argument does better than most of its rivals in this context. This, I believe,

is because he is aware that the question about the justification for punishment is not

just about whether it is permissible to punish O, but rather, and crucially, about

whether some particular body (S) has the right to do so. Again, the answer to this

question depends crucially on what constitutes for Duff a political community in the

relevant sense. If he makes the requirements too thin (i.e., mutual recognition and

protection of basic human rights) then he would have to admit that almost any body

would have the moral standing to censure O, and as a result he would end up

advocating universal criminal jurisdiction for every wrong that ought to be criminalized.

But arguably this is not what he has in mind. Duff seems to be talking o f a thicker

notion of political community. Accordingly, his argument would be safe from

collapsing into universal jurisdiction.

However, it might be that his approach faces other difficulties. D uff has recently

elaborated on his explanation of when a particular body has the appropriate standing to

bring O into account for her offence.78 He mainly relies on a theoretical point about

the conception o f responsibility which is consistent with, but does not necessarily

depend on, his normative justification for legal punishment. In short, he argues that the

concept of responsibility has a relational dimension. O is responsible for X to Y, or better,

O is responsible as W for X to Y. To illustrate: as a university teacher, D uff claims,

there are only certain bodies or individuals who can call O into account if, e.g., she

delivers an ill- prepared lecture. She will not be accountable to “a passing stranger, or to

[her] aunt, ... or to the Pope”.79 D uff uses this model to argue explicitly against a

territorial conception of criminal jurisdiction. “c[A]cting within a specified geographical

area X5 does not by itself have the normative significance that an answer to the ‘as

what’ question requires.”80 Rather, individuals should respond ‘as citizens’ o f a political

community. His conception of a political community is not o f particular interest for us

78 Antony Duff, "Criminal Responsibility, Municipal and International," (unpublished manuscript: 2006), cited with permission from the author. See also Antony Duff, Answering for Crime : Responsibility and UabiUty in the Criminal haw (Oxford ; Portland, OR: Hart Publishing, 2007), chapters 1 and 2.79 Duff, "Criminal Responsibility, Municipal and International," 5.80 Duff, Answeringfor Crime, 44.

here. What matters is the relevance that belonging to this political community has for O

to be accountable to a particular state for a criminal offence. On this basis, Duff argues

that “ [t]he wrongs that properly concern a political community, as a political

community, are those committed within it by its own members”.81

This conception, Duff admits, requires an obvious qualification, i.e., it needs to

extend to visitors and temporary residents, as well as citizens.82 But this causes

problems. D uffs argument for O being accountable to S is that O belongs to that

political community, that she is a citizen of S. But visitors and temporary residents are

not citizens. With regard to them he claims that they should, as guests, “be accorded

many of the rights and protections of citizenship, as well as being expected to accept

some of its responsibilities and duties”.83 Duff does not elaborate on this. He only

stipulates that “[t]his is not to revert to a geographical principle that grounds

jurisdiction in the territorial location of crime: what makes normative sense of

jurisdiction is still the law’s identity as the law of a particular polity”.84 As it stands, his

argument for this extension seems to rely on the benefits accorded to visitors in terms

of rights and protections. But this argument undermines his overall explanation. If all

we need for O to be accountable to S is that she receives certain rights and protection

from S, the notion of citizenship, i.e., that she belongs to that political community, ceases

to do any justificatory work. If, by contrast, Duff wants to maintain that criminal

responsibility is a relational concept and it makes O responsible to S on the grounds

that O is a citizen of S, he seems committed to the claim that temporary residents and

visitors are not accountable to S. This hardly seems an outcome that he would be

prepared to endorse. To sum up, then, all that Duff ultimately requires for O to be

accountable to S is that she receives the kind o f rights and protections that S can only

81 Duff, "Criminal Responsibility, Municipal and International," 13.82 Duff, Answeringfor Crime, 54-55.83 ibid, 54.83 Duff, "Criminal Responsibility, Municipal and International," 14.84 Duff, Answeringfor Crime, 55.

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provide on its territory, and this looks very much like a territorial conception of

jurisdiction.85

Moreover, it seems that this is a type of territorial conception that falls short of

explaining some standard instances o f S’s power to punish offences. On the one hand,

D uff is reluctant to endorse the principles o f nationality and passive personality.86 With

this goes the potential explanatory advantage over the account advocated here. On the

other hand, his position would fail to explain, for example, why Scotland had the power

to punish anyone (at least anyone who is not a Scottish national) for the Lockerbie

incident, or why, for example, Uruguay would have the power to punish offences

committed by foreigners in France against its sovereignty, security or important

governmental functions (principles of objective territoriality and protection). After all,

O lacks the relevant relationship to these states, and one can hardly argue that she has

received any specific benefit or protection from either Scotland or Uruguay. And yet,

these jurisdictional bases are not only well-established as a matter of law; they also seem

based on widely held intuitions about the appropriate scope of S’s power to punish.87

Ultimately, the problem with D uffs account lies with the fact that it relies on a

conceptual point regarding the nature of responsibility rather than on a normative

argument about the reasons that justify a particular state meting out legal punishment to

O. O f course I do not suggest that geographical location per se is o f particular moral

relevance. Rather, my claim is that in order to assess the extraterritorial scope of S’s

power to punish O we must look at the reasons that justify S in particular holding that

power. It is the normative argument I provide in defence o f that power that is sensitive

to the issue of where the offence was committed.

85 This, without even beginning to consider the situation o f O, a dual national o f SI and S2, who commits an act in S3 that is against the laws o f SI but mandatory under the laws o f S2. The account I advocate would be free from these kinds of difficulties.86 Duff, Answeringfor Crime, 54.87 In Chapter 4 I will argue, furthermore, that D u ffs argument cannot properly explain why, if responsibility is relational, international crimps warrant conferring upon every state the power to punish O (universal jurisdiction).

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7. Conclusion

The findings of this chapter are relatively straightforward. I have argued that

international law theory fails to provide a convincing explanation for the existing bases

o f extraterritorial jurisdiction over municipal crimes. In order to examine the

extraterritorial scope of states’ power to punish offenders we need to look at the

reasons that justify them holding that power in the first place. I argued that the

justification for the power to punish advocated in Chapter 1 fully accounts for states’

power to punish offences committed on their territory or against their sovereignty,

security or important governmental functions. However, I have rejected the

propositions that states hold an extraterritorial power to punish O on grounds of her

nationality or that of the victim. Indeed, the arguments on the basis of which these

jurisdictional rules are commonly defended either beg the fundamental question they

are meant to answer or are committed to much broader rules than those in force under

international law.

The last section of this chapter examined two possible lines o f criticism to the

theory of extraterritoriality developed here. I first rejected the claim that the framework

put forward is too restrictive by explaining how the justification for legal punishment

advocated here can accommodate collaborative efforts to tackle transnational crime

through international agreements. Finally, I examined whether competing justifications

for legal punishment based on other grounds have more promise in terms o f being able

to better explain how international law regulates extraterritorial punishment. I

suggested that even refined consequentialist and deontological theories ultimately do

not fare as well as the argument advocated here in accounting for certain core intuitions

on legal punishment.

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3A Jurisdictional Theory of International Crimes

'‘Nothing is more pernicious to an understanding of [international crimes such as genocide] ... than the common illusion that the crime of murder and the crime of genocide are essentially the same. The point of the latter is that an altogether different order is broken and an altogether different community is violated ’*

1. Stating the problem

In the previous chapter I argued that S’s normative power to punish an offender (O)

for crimes such as robbery, assault, fraud, etc., is primarily territorial.2 That is, I argued

that PS lacks the normative power to punish O for an offence she committed on TS,

unless that offence threatens its sovereignty, security, or important governmental

functions (principle of protection). I also argued that neither the nationality of O nor

the nationality of her victim (V) suffice to explain why PS ought to have a power to

punish O that is extraterritorial in scope. Nonetheless, this general position should be

qualified. I suggested that these jurisdictional rules apply only to municipal offences.

They do not purport to apply to offences such as genocide, war crimes or crimes

against humanity, which I shall call, for present purposes, ‘international crimes’. That

there is currently such a thing as an international crime as a matter of international law

is hardly controversial. Paradigmatic examples of prosecutions for this type of crimes

are probably the trial of Milosevic in The Hague, the extradition proceedings against

former Chilean dictator Pinochet in the UK, and the indictment of the current

1 Hannah Arendt, Eichmann in Jerusalem: A. Report on the Banality of E vil (New York Penguin Books, 1994).2 To repeat, I use for simplicity PS for the extraterritorial state that wants to prosecute O, and TS for the state on whose territory the offence was committed.

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President of Sudan before the International Criminal Court. The issue at stake in this

chapter is, generally, what makes a particular offence an international crime? That is,

what distinguishes international offences from domestic ones? And, furthermore, is it

possible to provide a cogent theory of international crimes able to accommodate, for

example, genocide, war crimes, crimes against humanity and terrorism?

This chapter is therefore about identifying the specific features of international

offences that explain why TS does not have an exclusive power to punish O. But this is

not yet an endorsement o f the thesis that international crimes warrant conferring upon

states universal criminal jurisdiction. This position will be advocated in the following

chapter. It is worth clarifying the division of labour I hereby advocate. In this chapter I

will only argue that individuals in TS lack an interest in TS holding an immunity against

extraterritorial authorities punishing O for international offences committed there. This

means that at least some extraterritorial authority holds the power to punish O. In

Chapter 4 I will provide an account of the jurisdictional rules applicable to this type of

offences. There, I will argue that the International Criminal Court (in particular) and

every state hold the power to punish O for an international crime perpetrated on TS.

These questions are often conflated. I suggest, by contrast, that as a matter of

philosophical argument it pays to examine them separately.

Before going any further a few points of disambiguation are in order. First, it must

be noted that my aim here is not to clarify the main features o f existing offences under

international law. Nor it is to provide a justification for the criminalization of specific

behaviours. My purpose is far more limited in scope. It has to do with identifying a

specific feature or set o f features that would explain why jurisdiction for these offences

should be broader than the territoriality and protective principles I advocated for

municipal offences. I shall concentrate on the standard cases in order to provide an

intelligible rationale for the settled instances of international offences, rather than try to

provide a test that will solve hard cases.

Secondly, in order to provide an answer to the question at hand I need to specify

further what is in need of normative justification. After all, both domestic and

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international offences can be characterized as behaviours that warrant meting out legal

punishment to their perpetrators. However, there are a number of normative

implications specifically attached to the notion of international crimes. Crucially for our

purposes tribunals can hold individuals accountable even in the absence o f any

traditional link or nexus with the perpetrator, the victim, or the offence. This means that

an authority A can punish an individual for an international crime even if the offence

was not committed on its territory, against its sovereignty, or by or against one o f its

nationals.

Accordingly, for the purposes of the present chapter I shall use the concept o f an

international offence in a narrow, exclusively jurisdictional sense, as crimes that warrant

conferring upon some authority extraterritorial criminal jurisdiction. In so doing, I

purport to isolate this issue from other normative and legal consequences (often

pressing and sensitive) commonly associated with this type of crime such as the

granting of amnesties or pardons by TS, the applicability or inapplicability o f statutes of

limitations, or the law on state or diplomatic immunity.3 1 am only concerned here with

the distinct jurisdictional regime applicable to them. In short, this chapter has to do

with identifying a specific feature or set of features that would explain why Belgium can

legitimately claim the power to prosecute and punish two Rwandan nuns for

participating in a genocide in Rwanda, but cannot prosecute and punish a single murder

perpetrated in, e.g., El Salvador.

This way of framing the question might be controversial. It may be objected that

by focusing exclusively on this jurisdictional aspect I am using a single normative

implication to conceptualize international crimes instead of providing a sound analysis

of the concept itself. In other words, and as it was put to me, that I am trying to put the

3 See the 1968 Convention on the Non-Applicability o f the Statutory Limitations to War Crimes and Crimes against Humanity (adopted by G.A. Res 2391). Also, ICC Statute, articles 29 and 27(2) and, e.g., the Argentine Supreme Court decision in Arancibia Clavel,’ and the French Court o f Cassation in Barbie. Recently, the Audiencia National o f Spain refused to extradite former Argentine President Maria Estela de Peron, precisely on the grounds that because the offences she was requested for were not crimes against humanity (and therefore international offences) the statutes o f limitations applied and Argentina lacked jurisdiction to try her. See http://www.elpais.com/articulo/intemacional/Audiencia/National/ rechaza/extraditar/Isabelita/Peron/elpepuint/20080428elpepuint_15/Tes (last accessed 10 January 2008).

cart before the horse.4 I disagree. Admittedly, this approach implies a criticism of part

o f the existing literature.5 It suggests, among other things, that it is not very productive

to try to determine what humanity stands for in the notion of crimes against humanity,

and rather seeks to account for a specific implication often associated with this type of

offences.6 Moreover, this implication is arguably an important reason why these

offences are referred to as international crimes, and why prosecutions for this type of

crimes are commonly resisted and criticised.7 Thus, using Rawlsian vocabulary, I

advocate in this thesis a political conception o f international offences, that is, one that

sees them as crimes for which extraterritorial authorities can legitimately intervene in

what would otherwise be the domestic affairs of other state(s).8

The quest for a unified explanation of international crimes is an important one. For

one thing, it contributes to answering the question of whether there should be a system

of international criminal law at all by forcing us to clarify its normative underpinnings.

Furthermore, it has become more pressing as a result of states increasingly claiming an

extraterritorial power to punish offenders (O) for crimes under international law other

than piracy. Genocide and crimes against humanity were the first hard cases to be

decided by a court of law in the aftermath of World War II. More recently, certain

sexual offences and terrorism have been at the centre o f this debate. Among the

arguments articulated as an explanation for the particular jurisdictional regime attached

to international offences we could readily highlight the following: it has been argued

that they are analogous to piracy in some specific respect; or that they are perpetrated

in places where law enforcement is simply too weak; that they harm or violate humanity

4 I am grateful to Paul Roberts for pressing me on this issue.5 Two exceptions are May, Crimes against Humanity and Cryer, Prosecuting International Crimes, 75.6 For examples o f this approach see David Luban, 'A Theory o f Crimes against Humanity', Yale Journal of International Law 29 (2004) and Richard Vemon, What Is Crime against Humanity?' The Journal of Political Philosophy 10, no. 3 (2002).7 See the US arguments against Belgium prosecuting Tommy Franks, or George W.H. Bush.8 In The Law o f Peoples John Rawls sketches a political conception o f human rights as rights which set limits to the sovereignty o f states, in that their violation constitutes a reason for other states or international bodies taking action against the violator. For a robust defence o f this political conception o f human rights see Joseph Raz, 'Human Rights without Foundations', University of Oxford Legal Studies Research Paper Series (WP 14/2007).

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itself; that they shock the conscience of humankind, among others. I will divide them

here into two main groups. In section 2 I shall examine arguments that claim that

international offences are relevantly analogous to piracy. Section 3, examines the

arguments that purport to explain them in terms of harm to humanity. Ultimately, I

shall consider these two families o f arguments unsuccessful. In section 4 ,1 shall present

my own jurisdictional theory of international crimes. I shall argue that what justifies

making a criminal rule into an international criminal rule is the fact that it cannot really be

in force on the territory of TS if it has to rely exclusively on it being enforced by TS.

Section 5 deals with the objection that international criminal law does not need a theory

of international crimes. And, finally, section 6 examines whether different variants of

terrorism should qualify as international crimes.

2. Piracy-based explanations and the history of international crimes

Piracy was undisputedly the first international offence in the specific sense I use here.

Pirates have traditionally been referred to as hostis humani generis and their actions

considered cognizable by any state which gets a hold on them.9 Although scholars point

to the slave trade as another classical example of an international offence, piracy has

proved extremely enduring and influential both in theory and practice. In short, it

single-handedly opened the door for the contemporary doctrine of universal criminal

jurisdiction. During the 20th Century, international law produced a new generation of

international offences: war crimes, crimes against humanity, genocide, and several

others.10 These offences are quite dissimilar from piracy. Nevertheless, scholars,

theorists and courts have repeatedly tried to explain the main features of international

offences, and in particular their distinct jurisdictional regime, by reference to one or

9 This position on piracy as a matter o f what we currendy call International Law goes back at least as far as Grotius. But it has been suggested that this view goes essentially back in time until the period before Alexander (Max Radin, 'International Crimes1, Iowa Law Review 32 (1946-1947), 41). On piracy, see generally Alfred P. Rubin, The Law of Piracy (Irvington-on-Hudson, N.Y.: Transnational, 1998).10 Bassiouni, e.g., mentions torture, apartheid, hijacking, etc. See M. Cherif Bassiouni, 'Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice', Virginia Journal of International Law 42, no. 1 (2001).

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more of piracy’s specific features.11 Characteristically their reasoning follows the

following pattern: piracy undisputedly is and ought to be an international offence; war

crimes, genocide, crimes against humanity and the like share feature ‘x’ with piracy;

thus, they should also be international offences. I will argue that there are two different

kinds of problems with these arguments. Some misguidedly link universal jurisdiction

to a particular feature ‘x’ that piracy arguably shares with other international crimes but

which cannot explain its jurisdictional regime; others, by contrast, fail to make that link

altogether and argue on the basis of a non sequitur.

Willard Cowles provided one of the few explanations of why war crimes must be

considered international offences.12 His argument is not purely normative; rather he

seems to rely also on historical and legal considerations. However, it illustrates quite

well the kind of arguments this section is about. Cowles represents what I shall call for

present purposes the ‘scene of the crime’ theory. He argues that the “origin o f the

jurisdiction over the war criminal must be sought in the ancient practice of

brigandage.”13 He suggests that the concept o f the war criminal is a legal construction

o f the 20th Century. Previously, war criminals acting both in a public and a private

capacity were considered brigands. And brigandism, just as piracy, “stem[s] from the

fundamental fact o f the lack of governmental control in the areas of their operations”;

they flourish where political order and law enforcement are lacking, i.e., they

characteristically grow during periods of war.14 It is in this sense that war crimes are

very similar to piratical acts: in both situations there is “a lack o f any adequate judicial

system operating on the spot where the crime takes place” and “both the pirate and the

war criminal take advantage of this fact, hoping thereby to commit their crimes with

11 See, for example, Israel v Eichmann.12 In effect, as I argue in section 3 below, most o f them were tailored specifically to tackle crimes against humanity. For another argument on war crimes, though far less appealing, see Thomas H. Sponsler, 'The Universality Principle of Jurisdiction and the Threatened Trials o f American Airmen', Loyola Law Review XI (1968-1969).13 Willard B. Cowles, 'Universality of Jurisdiction over War Crimes', California Law Review XXXIII, no. 2 (1945), 181.14 ibid, 193.

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impunity.”15 Thus, he concludes, “[t]he jurisdiction, exercised over war crimes, has

been of the same nature as that exercised in the case of the pirate, and this broad

jurisdiction has been assumed for the same fundamental reason.”16

Cowles’ argument is historically informed, and certainly appealing. However, I

suggest it is ultimately unsuccessful. The reason for this is that it relies too heavily on

the pedigree of piracy as an international offence. Put differently, he is so concerned

with showing that war crimes can be assimilated to piracy, that he overlooks the

justification for considering piracy an international offence in the first place. I suggest it

is worth paying a closer look to what is ultimately doing the justificatory work in his

argument. On his view, international offences are those which are perpetrated in places

where governmental control is lacking, and where offenders can expect to act with

impunity. Whether this argument suffices as a historical reason for making piracy an

international offence is questionable. Many other offences often occurred on the high

seas, such as assault or murder unaccompanied by robbery, and these were not

subjected to extraterritorial jurisdiction. Thus, neither the fact that piracy or war crimes

are difficult to prevent and punish, nor the fact that they are committed in areas where

there is insufficient presence of a state authority seem to suffice in order to understand

why they were made into international offences.

Whether Cowles’ argument succeeds as a normative explanation of the jurisdictional

regime of international offences is even more dubious. Although Cowles does not say

so explicidy, his argument seems to be that where law enforcement is very weak or

lacking, such as the high seas or a situation of war, the standard bases of jurisdiction for

domestic offences would fail to deter potential offenders. This is implied by the

assertion that in such contexts brigands and war criminals can hope to commit their

crimes with impunity. I agree with the claim that allowing every state to punish O

15 ibid, 194, 217. Cowles points to other features o f brigandism which, to some extent, might explain the expansive jurisdictional rules on it: “it is motivated by no public cause and ... authorized by no state”, or it “has been to a large extent international in character”, i.e., international borders are ideal for the brigand, and “bands o f brigands are often made up o f members o f more than one nationality” (at 184, 185, and 186 respectively). But ultimately he relies on the ‘scene o f the crime’ consideration to justify its particular jurisdictional regime.16 ibid, 217.

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would increase deterrence. However, as argued in Chapter 2 above, deterrence as a

general justification for the power to punish O would collapse the distinction between

municipal and international offences by providing an extraterritorial Prosecuting State

(PS) with jurisdiction over both of them. As a result, Cowles’ argument is not an

explanation of what makes war crimes andpiracy international offences.

The second and perhaps most influential version of these piracy-based

explanations is the ‘nature of the crime’ theory.17 More precisely, it is often argued that

the ‘heinousness’ of an offence is what justifies a state with ‘no connection’ at all with it

holding the power to punish O. This proposition has a number of different

formulations. The ICC Statute, for instance, talks about ‘unimaginable’ atrocities.

Similarly, it has been argued that international offences are characterized by “a level of

callousness that embodies the very essence o f evil itself’18, or that they “shock[s] the

conscience o f mankind”19, that they have an “added dimension o f cruelty and

barbarism”20 capable o f “tear[ing] the roots of civilized society”21, and so on. The

heinousness argument, however, is not used by itself to justify the particular

jurisdictional rules often associated with international offences. Rather, this implication

is explained also by way of analogy with piracy.22 Under this argument, it is the

substantive nature of pirates’ acts, i.e., its heinousness —rather than the location of the

crime — that makes them cognizable by an extraterritorial authority.23 A crucial

17 Princeton Principles, art. 1.18 Laurence Thomas, ‘Forgiving the unforgivable’ in Eve Garrard and Geoffrey Scarre, Moral Philosophy and the Holocaust (Aldershot: Ashgate, 2003).19 Prosecutor v Tadic (1995) at 57. See also, Michael Walzer, Just and Unjust Wars : A Moral Argument with Historical Illustrations (New York: Basic Books, 2000), 107.20 Regina v Finta, 818.21 Christopher C. Joyner, 'Arresting Impunity: The Case for Universal Jurisdiction in Bringing War Criminals to Accountability', Law and Contemporary Problems 59, no. 4 (1996), 171.22 Eugene Kontorovich, 'The Piracy Analogy: Modem Universal Jurisdiction's Hollow Foundation', Harvard International Law Journal 45, no. 1 (2004).23 ibid, 205. For e.g. o f explicit endorsements o f this analogy see Diane F. Orentlicher, 'Settiling Accounts: The Duty to Prosecute Human Rights Violations o f a Prior Regime', Yale Law Journal 100 (1991), 2557-2557 See also, 1 Law Reports o f Trials o f War Criminals 35, 42 (1947) (Brit. Mil. Ct. Almelo), cited in Kontorovich, The Piracy Analogy: Modem Universal Jurisdiction's Hollow Foundation', 195. This reasoning has been followed, e.g., by the American Courts In re Extradition of Demjanjuk (1985). Filartiga v Pena-Irala, arguably the most famous case in which the U.S. claimed

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advantage o f this approach, Kontorovich suggests, is that by arguing that the

heinousness of the crime explains the power to punish international offences on

universality grounds, advocates of the piracy analogy put their opponents in the

position of having to either question the heinousness of, for example, systematic

torture, or concede that it should be treated like piracy.24 One may well feel discouraged

from trying to prove the premise wrong.

Kontorovich argues powerfully against this explanation. He correctly suggests that

its heinousness could not have been the reason why piracy was considered an

international offence in the first place. When similar acts were perpetrated by

privateers, i.e. state-licensed pirates, they were repatriated rather than subjected to

universal criminal jurisdiction.25 Moreover, acts of piracy were never really considered

particularly heinous. Piracy ultimately amounted to a very troublesome variety of

robbery.26 And although the locus where it was committed made it hard to prosecute,

this was certainly not enough to put its heinousness on a par with offences such state-

sponsored rape or the poisoning o f water supplies.27

Once it is stripped from the piracy analogy, this argument seems to lose whatever it

was that explained precisely why extraterritorial bodies would have the power to punish

O. There is no evident connection between the heinousness o f a particular crime and

the scope of a state’s power to punish O. And yet, it is precisely this connection that

the theory needs to establish. Accordingly, this argument simply rests on a non sequitur.

extraterritorial jurisdiction over acts o f torture is not relevant for our purposes here, as it deals with civil jurisdiction, and therefore not with the U.S.’s power to punish O.24 Kontorovich, The Piracy Analogy: Modem Universal Jurisdiction's Hollow Foundation', 208.25 ibid, 21 Off.26 See United States v Palmer, cited in ibid, 225.27 Both already mentioned by Vattel, Law of Nations, book III, § 145,157. Conversely, it might have been precisely because piracy was not as heinous as murder or rape that states were willing to accept extraterritorial jurisdiction over it: “[ujniversal jurisdiction over murder would usurp this deeply felt responsibility and thus antagonize the nation with traditional jurisdiction.” Kontorovich, 'The Piracy Analogy: Modern Universal Jurisdiction's Hollow Foundation', 229 citing United States v Furlong. In this case, the Court argued: “Robbery on the seas is considered an offence within the criminal jurisdiction of all nations ... Not so with the crime of murder. It is an offence too abhorrent to the feelings o f man, to have it made it necessary that it also should have been brought within this universal jurisdiction.” (at 196-7).

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3. International offences as ‘crimes against humanity*

Arguably, the most elaborate arguments for international offences have been developed

within, what I call here, the paradigm of ‘crimes against humanity’ (hereinafter CAH).28

This paradigm is not necessarily focused on the legal category of crimes against

humanity, as distinct from war crimes, genocide, or crimes against peace (aggression).

Rather, it often implies the particular view, traceable perhaps to The Hague

Convention’s Martens Clause, that international crimes harm or violate humanity

itself.29 This purportedly explains why any state or an international tribunal would be

entided to punish their perpetrators. Interestingly, it was in the context of CAH that

scholars and tribunals have been pressed to distinguish municipal from international

offences.30 War crimes, by contrast, entered the constellation o f international offences

largely uncontested.31 In fact, the first criterion used to internationalize CAH was

precisely the ‘war nexus’. That is, CAH were cognizable by an extraterritorial authority

only when committed “before or during the war” and “in execution o f or in connection

with” war crimes or crimes against peace. In any event, CAH have now established

themselves as a category of international offences in their own right and, some would

argue, they could eventually become synonymous with them.32

The CAH paradigm revolves around the notion that CAH are group crimes in the

sense that they are either committed by certain groups or against them. These

28 I refer here to the writings o f Anupam Chander, 'Globalization and Distrust', Yak Law Journal 114 (2005); Adil Ahmed Haque, 'Group Violence and Group Vengeance: Toward a Retributivist Theory of International Criminal Law', Buffalo Criminal Law Renew 9 (2005); Luban, 'A Theory o f Crimes against Humanity'; May, Crimes against Humanity, Vernon, What Is Crime against Humanity?' 283. Here, I will mainly concentrate on the last two.29 Preamble to the 1899 Hague Convention (II). See also Prosecutor v Erdemovic, §28 (29 November 1996).30 Phillis Hwang, 'Defining Crimes against Humanity in the Rome Statute o f the International Criminal Court', Fordham International Law Journal 22 (1999); Beth Van Schaack, The Definition o f Crimes against Humanity: Resolving the Incoherence', Columbia Journal of Transnational Law 37 (1999).31 This has been considered one o f the most underrated legacies o f the Nuremberg trials. And rightly so because, at the time, there was no clear rule o f international law that treated war crimes (and for that matter crimes against peace) as international offences subject to universal jurisdiction. To this, one may add the fact that the Allied power could have used other jurisdictional bases to try war the Germans for war crimes and aggression. On this see Sponsler, 'The Universality Principle o f Jurisdiction and the Threatened Trials o f American Airmen'.32 William J. Fenrick, 'Should Crimes against Humanity Replace War Crimes?' Columbia journal of Transnational Law 37 (1998-1999). For the view that war crimes are more appropriate as synonyms o f international offences see Simpson, Law, War and Crime.

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arguments usually rely also on the fact that they entail some egregious form of

wrongfulness. I will argue that the different arguments under this account fail on two

relevant grounds. First, they ultimately fail to identify a convincing rationale for making

CAH cognizable by some extraterritorial authority. Secondly, when they do provide or

point towards some answer to this question, this answer collapses the distinction

between domestic and international offences by advocating extraterritorial prosecutions

for both.

A first line of argument relies on the proposition that CAH are international

offences because they are perpetrated by governments or govemment-like

organizations against groups under their control. There are several versions of this

argument. For the sake o f clarity of exposition, I shall divide them here into three: i) the

conceptual claim that PS has the power to punish O on the grounds that TS has

forfeited its immunity against PS doing so; ii) the normative argument that PS’s power

to punish O is based on the interests of individuals in TS; and iii) the argument that this

power is based on the individual interest of every single person on earth.

Let us first examine the claim that when security forces or state officials in TS

perpetrate CAH against part of TS’s own population, TS forfeits its immunity against

other parties interfering in its internal affairs by, in particular, punishing O.33 This claim

is intuitively plausible. Why should such a state retain an immunity against this type of

interference? The problem with this argument is that it fails to explain why TS has

forfeited its immunity against a certain extraterritorial body, in particular, holding the

power to punish O. It is harder to provide a satisfactory answer to this question than it

might initially appear.

I will illustrate this by reference to an interpersonal example. While O attempts to

kill V by shooting at her, O would arguably lack a right against third parties intervening

to save V’s life (by killing O if necessary). This is often explained by arguing that O

forfeited her right against being attacked. However, once the threat is over (e.g. O

misses her final shot or, indeed, V is dead) a third party would need a different kind of

33 Luban, 'A Theory o f Crimes against Humanity', 109.

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justification to use force against O (for our purposes, by punishing her).34 This is

precisely the kind of argument that justifications for legal punishment provide and the

question I claim this argument begs. In other words, the argument being considered

can only explain why TS forfeited its claim-right against a third party intervening on

humanitarian grounds to stop the perpetration of CAH on its territory or, similarly,

why PS is at liberty to do so. But this does not account for TS’s loss o f its immunity

against foreign bodies punishing O, let alone for PS’s power to do so. Unless, perhaps, this

power is grounded on the need to incapacitate O. It is unlikely, however, that defenders

o f this argument would be willing to endorse incapacitation as a general justification for

the legal punishment. Moreover, this position has a further difficulty. If this were the

case, then Israel, France and Italy would not have had the power to try Eichmann,

Barbie and Pnebcke, respectively, since when they were apprehended they hardly

constituted a threat to anyone.

The second version o f this argument purports to explain PS’s extraterritorial power

to punish O by reference to the interests of individuals in TS generally. The claim is

that when CAH are perpetrated by a state or state-like entity, this is likely to affect

other people in TS besides V. As a result, the international community “would have a

legitimate basis for intervention so as to protect the larger community also likely to be

harmed by the plan.”35 This argument is open to the criticism sketched in the previous

paragraphs that the actual physical protection afforded to potential victims, either by

way of deterring or incapacitating offenders, cannot withstand scrutiny as a justification

for TS’s power to punish O. It also has a further troublesome implication. Tying the

power to punish O so tightly to the protection of potential victims would lead to the

unacceptable consequence that if the government o f TS succeeds in completely

exterminating a minority that lives on its territory, i.e. if it succeeds in eliminating

potential victims, then no authority (neither domestic nor extraterritorial) would have

the power to punish O.

34 On this see Chapter 1, section 3.1 above.35 May, Crimes against Humanity, 88. Emphasis added.

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Thirdly, international crimes have been explained by recourse to the interests of

every individual on earth. On the one hand, it is argued that CAH harm humanity in

the sense that they are both crimes against our shared humanness and against humanity

understood as mankind. The aspect of our humanness that is affected by CAH is our

character as political animals.36 Human beings, the argument goes, are political rather

than social animals (e.g. ants) in the sense that we need some form of artificial coercive

organization.37 The problem is that politics can go horribly wrong and end up in the

most atrocious crimes. Accordingly, “because we cannot live without politics, we exist

under the permanent threat that ... the indispensable institutions of organized political

life will destroy us.”38 CAH so defined pose a ‘universal’ threat that every individual

human being (mankind) has an interest in repressing. Thus, the interest that justifies

making them into international offences is the “interest in expunging [them] from the

repertoire of politics ... [; because] in a world where crimes against humanity proceed

unchecked, each of us could become the object of murder or [persecution].”39

I am sympathetic to the general claim that individuals both within TS and outside it

(in PS, etc.) have an interest in O being punished for perpetrating an international

offence. I disagree, however, with the particular interest on which this account relies.

Indeed, it seems to rest on the proposition that every human being has an interest in

CAH being punished irrespectively of where they were perpetrated, simply because

anyone could be a victim o f these offences. We are all hostages of some political

organization, and politics can potentially always go horribly wrong. Thus, the argument

goes, any state and not just TS should have the power to punish O for this type of

offence.40 However, we may readily object, we also live inevitably next to each other,

36 Luban, 'A Theory of Crimes against Humanity', 110.37 ibid, 113.38 ibid, 90-91. This is explicitly similar to Richard Vernon’s explanation o f CAH as an “inversion o f the jurisdictional resources o f the state” (Vernon, What Is Crime against Humanity?' 242).Vemon’s argument largely overlaps with many o f the consideration on which Luban’s argument is based. To this extent, I shall not explicidy deal with it here.39 Luban, 'A Theory of Crimes against Humanity', 138.40 As a matter o f fact, Luban argues for vigilante jurisdiction. However, he qualifies his claim by suggesting that it might be dangerous to allow private individuals to go punishing perpetrators o f crimes against humanity. Only institutions which respect the natural justice duty (which essentially entails the

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and every human being could also be a victim of murder, assault, theft, etc. Moreover,

the chances of being a victim of any of these municipal offences are, in a significant

majority of states, far greater than those o f being a victim of CAH. Thus, despite

providing a rationale for conferring upon PS an extraterritorial power to punish O, in

so far as this argument is grounded on the individual interest that each human being

holds in not being herself the victim o f a criminal offence, it collapses the distinction

between international and municipal offences by advocating extraterritorial

prosecutions for both.

The reader might find this response unfair. Clearly there is a significant disanalogy

between offences committed by states or state-like organizations and those committed

by individuals acting alone: while TS can prevent/punish domestic offences being

perpetrated, who would be able to stop/punish TS’s officials from /for perpetrating

CAH against its subjects? Though I readily admit that this disanalogy holds, I dispute

its purported implications. If the problem is that while some agent (TS) can prevent a

single murder, no one can prevent CAH, the solution seems to be to grant some

extraterritorial body the right to do so. However, and as explained above, the right to

stop atrocities occurring in TS involves only a liberty to intervene on humanitarian

grounds, i.e. a first order incident, not (or not yet) a power to punish those responsible

for them. Ultimately, this power seems to rely on the claim that every human being has

an interest in deterring potential perpetrators of CAH. This is the only way in which the

criminal law may try to “expunge these acts from the repertoire o f politics.”41

Nevertheless, this shows precisely why the alleged implications of the disanalogy put

forward disappear. To repeat, although deterrence can explain extraterritorial

prosecutions in the case of CAH, I have argued that it collapses the distinction between

domestic and international offences by advocating extraterritorial prosecutions for

both.

safeguards of due process of law) should have the power to exercise this right every individual holds. I think he conflates two different things. On this see section 1 in Chapter 5 below.41 See text to fn 43 above.

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On the other hand, a different consideration that purportedly explains why CAH

are international offences is that they are committed against individuals on grounds of

their membership to a group or population. One version of this argument, for example,

justifies extraterritorial prosecutions by reference to the fact that “all women share an

interest in ensuring that women are not killed solely for being women, and all Jews

share an interest in ensuring that Jews are not killed solely because they are Jews”.42

However, few people would argue, e.g., that all ‘hate crimes’ should be turned into

international offences.43 The fact that V is assaulted because of being Jewish, or black,

or Latino, in a quiet alley in Hamburg hardly entails, nor should it, that Germany lacks

its immunity against some extraterritorial authority holding the power to punish O.

Moreover, to repeat, this argument would have unacceptable implications if TS is

threatening to exterminate a minority which only exists in TS.

Admittedly, this argument could be stated in more general terms. In Luban’s

words, “in a world where crimes against humanity proceed unchecked, each of us could

become the object of murder or [persecution] solely on the basis o f group affiliation we

are powerless to change.”44 Similarly, May argues that “[h]umanity is implicated, and in

a sense victimized, when the sufferer merely stands in for larger segments of the

population who are not treated according to individual differences..., but only

according to group characteristics.”45 This is because this type o f offence is

individuality-denying. The underlying rationale behind these claims seems to be that

these are crimes that could happen to people for reasons that are beyond their control.

As such, it might seem plausible enough; we may all have an interest in not being

victims of crimes for reasons we cannot change. Nevertheless, I think this claim misses

whatever it is that we find compelling about the original statement. If V were assaulted

because she is tall, or short, or pretty, this would hardly constitute a sufficient reason

for triggering the extraterritorial prosecution of her attacker. Conversely, this argument

42 Luban, 'A Theory of Crimes against Humanity', 138.43 Furthermore, this argument implies that racially etc. motivated crimes are more serious than crimes with other motivations, or even motiveless crimes, and this is not easy to argue.44 Luban, 'A Theory o f Crimes against Humanity1, 138.45 May, Crimes against Humanity, 85-86.

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seems unable to accommodate a situation in which she is attacked for belonging to a

particular political party, or professing a certain religion, etc. (things she would

eventually be able to change). Rather, it seems that what is doing the justificatory work

here is the fact that V is a member o f a vulnerable group or persecuted minority, rather

than the fact that she is being targeted for reasons she cannot change. Put differently, it

is the fact that she is Jewish, or black, Muslim or Albanian (in a world where these

groups are persecuted) not the fact that she cannot change what she is, that matters.

May could reply that the individuality-denying element of CAH is not a sufficient

condition for extraterritorial prosecutions. His account also requires that TS deprives

its subjects of physical security or subsistence, or that it is unable or unwilling to

protect them from harms to their security or subsistence, i.e., that it violates what he

calls the ‘security principle’.46 However, I fail to see why a policy o f ethnic cleansing

directed against members of a specific minority should be an international offence, and

one of mass random killings should not. May might respond by arguing that his

account can deal plausibly with the latter too. The individuality-denying element is not a

necessary feature of international offences either. Thus, the random killings policy might

be considered an international offence on grounds o f the group-based character of the

perpetrator, rather than that of the victim.47 May’s argument is not easily defeated.

However, I want to argue that, ultimately, it is philosophically unsatisfying because it

fails to provide an explicit rationale for subjecting certain offences to extraterritorial

prosecutions.

If we look a bit closer, this group-based argument seems to get its moral pull from

the fact that it relies on the vulnerability of certain groups, or better, perhaps, on the

vulnerability of certain individuals as members of these groups. Although pointing in

46 ibid, 68. May relies on a particular division o f labour here which needs elaboration. He contends that the violation o f the ‘security principle’ explains why TS lacks an immunity against PS interfering (by punishing O), while the fact that CAH are committed against groups (or by them) (the ‘international harm principle’) explains why O herself lacks an immunity against being punished. I find this problematic. Indeed, why would one want to put such a high threshold to justify before O the harm involved in punishment when we usually accept that O would be liable to being punished for domestic offences? Rather, the crucial question seems to be not why would O be liable to being punished but why would O be liable to being punished by PS?47 Which also entails a violation o f the international harm principle.

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the right direction, I believe this consideration still falls short of explaining why these

features entail that some extraterritorial authority should hold the power to punish O.

It fails to explain what is the interest that members o f a persecuted minority have that

would warrant conferring upon PS the power to punish O without collapsing the

distinction between domestic and international offences. In other words, May’s account

also begs the crucial question. It provides at best a fairly accurate rule of thumb as to

what kind of acts are, or should be, international offences, but it fails to provide an

explanation of why this is so.

4. A ‘jurisdictional’ theory of international crimes

In the previous sections, I have argued that most accounts of international offences

cannot really explain what distinguishes them from domestic crimes in terms of

allowing for some form of extraterritorial jurisdiction. Admittedly, they highlight

several considerations which point in the right direction: the fact that international

offences are committed by states or state-like entities, or perpetrated in places where

law enforcement is particularly weak, or involve the most heinous acts committed

against a vulnerable group of people. However, they all fail to connect the fundamental

consideration(s) on which they rest, with a plausible explanation o f why a particular

state holds the power to punish O for a particular offence.

In this thesis I have argued that TS’s power to punish O is justified by the interest

o f individuals in TS in there being a system of criminal law in force. I now contend that

there are certain criminal rules that cannot be in force in TS unless at least some

extraterritorial authority holds a concurrent power to punish O. These rules provide a

foundation for international crimes. Let me illustrate this by reference to a particular

crime against humanity: acts of widespread and systematic torture perpetrated in TS.48

Plausibly, whenever systematic or widespread acts of torture are perpetrated in TS, it

will necessarily be the case that TS is either responsible for perpetrating, instigating or

48 See article 7.1 o f the ICC Statute. I leave aside for the time being the requirements o f them being “an attack directed against any civilian population” and the “knowledge o f the attack” (ibid) and any further qualification stemming from art. 7.2.

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allowing them, or simply unable to do anything about them. As a result, the fact that TS

itself holds the power to punish this kind of act cannot really contribute to the sense of

dignity and security of individuals in TS. As Geras puts it, “states and governments are

themselves ... the very source of the calamities we are talking about ...; [thus, they]

cannot be relied upon as the guarantors ... of last resort.”49

Take for example the last Argentinean dictatorship (1976-1983). As is well

documented, the military had significant leeway to kidnap individuals, torture them, and

in most cases make them disappear.50 Should a military squad knock on their door,

there was no recourse to the police, no hope of being rescued by the authorities,

nothing except the sheer use o f force in self-defence. The reason for this is that these

squads were not, in any meaningful sense, bound by a criminal prohibition against doing

what they were, in fact, ordered to do as a matter o f policy. In this context, individuals

in Argentina could not meaningfully believe that the criminal rule against being

kidnapped, tortured and killed by these public officials was in force. These criminal

prohibitions could not contribute to their sense of dignity and security.

However, would not individuals in TS have a conflicting interest? In the general

Introduction to this thesis I argued that individuals in TS have an interest that is

sufficiently important to confer upon TS a prima facie immunity against extraterritorial

authorities dictating or enforcing criminal laws on its territory. I argue now that it

follows from the stated consideration that in the outlined circumstances TS would lack

an immunity against extraterritorial bodies punishing O. But first a conceptual point is

in order. To claim that TS lacks this immunity means that at least some extraterritorial

authority would hold the power to punish O.51 For present purposes, I shall use these

two propositions interchangeably. Having clarified that, let us now turn to the

purported normative implication. I suggest that TS normally holds a prima facie

49 Norman Geras, The Contract of Mutual Indifference: Political Philosophy after the Holocaust (London: Verso, 1998), 4.50 For two good accounts see Jaime E. Malamud-Goti, Game without E n d : State Terror and the Politics of Justice (Norman: University o f Oklahoma Press, 1996) and Iain Guest, Behind the Disappearances : Argentina's Dirty War against Human Rights and the United Nations (Philadelphia: University o f Pennsylvania Press, 1990).51 On this see section 3 in the general Introduction to this thesis above.

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immunity against PS punishing O for an offence she committed on its (TS’s) territory.

This immunity is ultimately explained by the interest of individuals in TS in foreign

bodies not dictating criminal rules binding on them. This is, in part, because this is what

it means for TS to be a self-governed entity. This immunity, however, is not absolute; it

is limited both by the interests of non-members, and by the fundamental interests of

the members of TS. I suggest that individuals in TS have a fundamental interest in there

being a criminal rule in force in TS against widespread and systematic acts of torture,

murder, and the like. Moreover, this interest is not only incompatible with TS holding

an immunity against PS punishing O, but it also overrides the interest that explains that

immunity.

To wit, the interest of, e.g., the Germans in 1939 in a foreign body not punishing

O for acts of genocide on German soil is not sufficiendy important to warrant

conferring upon Germany an immunity against a foreign body punishing O. This is

because the interest of, for instance, the German Jews and other prosecuted minorities

in such a criminal rule being in force in Germany is more important than the interest of

their Aryan co-nationals in being left alone. If nothing else, I suppose that the German

Aryans would be able to lead a minimally flourishing life even without a right

preventing foreign authorities from dictating criminal rules binding in Germany against

widespread and systematic murder, whereas members o f persecuted minorities would

find it much harder to live a decent life in a state in which their rights not to be killed,

tortured, etc. are not protected by the criminal law system.

Let me clarify further my position in three relevant respects. First, I am not

suggesting that international offences are exclusively crimes committed by states.

Rather, I readily admit that certain non-state actors can also commit this type of

offences. In fact, in contemporary warfare most of these crimes are committed by

irregular forces.52 In certain areas in Colombia, for example, guerrilla or paramilitary

groups hold de facto a significant portion of the powers which are often associated with

52 Mary Kaldor, New and Old Wars : Organised Violence in a Global Era (Stanford, Calif.: Stanford University Press, 2007).

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the state. They function as police officers, judges, administrative authorities, and they

even collect “taxes”. Now, they also perpetrate a significant number of offences such as

kidnapping and murdering political and military opponents and sympathisers, etc.53 As

in the Argentine situation above, I suggest that individuals living in the 2ones controlled

by these guerrilla groups will not consider, either, that there is a criminal rule against

being kidnapped or killed by these groups that is in force (binding upon them). That is,

at least when such acts are performed as a matter o f policy. The fact that the

Colombian state provides a criminal rule against members of these groups performing

such acts does not contribute in any meaningful way to the sense o f dignity and security

o f individuals living in these areas. As a result, I suggest, individuals living in those

territories have a fundamental interest in these rules being in force that overrides their

interest in TS holding an immunity against a foreign body punishing O for these

offences.54

The second relevant point of clarification is that not every wrong committed on TS

on a widespread or systematic scale would entail that TS lacks an immunity against an

extraterritorial authority punishing O. In short, systematic and widespread traffic

violations or bicycle theft perpetrated on TS do not amount, under the scheme I

advocate, to international offences.55 The reason for this is, arguably, that the interest of

individuals in TS in being a self-governed state is more important than their interest in

traffic regulations being binding on particular groups o f individuals. I have argued that

the interest o f individuals in TS in it being a self-governed authority is limited by the

interests of individuals outside TS, and by the fundamental interests o f the individuals

53 On the situation in Colombia and how the state has been unable to deal with these groups even by using drastic emergency penality means see Manuel A. Iturralde, "Punishment and Authoritarian Liberalism: The Politics of Emergency Criminal Justice in Colombia (1984-2006)" (PhD Thesis, London School o f Economics, 2007).54 Admittedly, someone may ask, however, whether it is really the case that the fact that some extraterritorial body would have the power to punish O would contribute to the rule against, e.g., systematic torture being in force in TS. This issue will be tackled with some more detail in the following chapter.55 This was, in fact, the case in Argentina during the dictatorship, and even before that. Many state officials and unofficial armed groups linked, often, to Trade Unions or other official bodies, characteristically could violate most o f the traffic regulations. I shall come back to this issue in section 6 below.

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in TS.56 I now suggest that individuals in TS do not have a fundamental interest in these

traffic regulations being in force that is sufficiendy important to override their general

interest in being left alone. Only violations o f fundamental rights such as the right not

to be tortured, killed, raped, etc. would. In cases of far milder crimes, I suspect their

interest in dealing themselves with these issues prevails. This, then, clarifies the role that

moral egregiousness or enormity plays in defining international offences. It would be,

of course, hard to decide where to draw the line. Yet, the purpose o f this chapter is

only to explain why certain standard offences warrant conferring upon some

extraterritorial authority the power to punish O, while others do not.

Comparing these values against each other might lead to further difficulties. It may

be objected, for instance, that there might be some communities within a nation state

who may have fewer qualms than most about foreign powers interfering. E.g. Welsh

nationalists might resent English rule so much that they would prefer to have a foreign

power dealing with traffic offences. Or what if ethnic minorities are disproportionately

targeted for traffic violations? Would they not have an interest in a foreign power

prosecuting these offences? I reject the purported normative implication underlying

both these objections. Even if the Welsh would rather have any state but England

prosecuting traffic violations on Welsh territory, I seriously doubt that they would have

a sufficiendy important interest to warrant conferring upon, e.g., Japan the power to

prosecute and punish traffic violations. This is because the interest that justifies holding

the power to punish O is that in having a system of criminal rules and, regardless of

what their will is on this matter, these traffic rules are in force in Wales. Indeed, it is

most unlikely that Japan claiming jurisdiction over traffic violations in Wales would

suffice for these rules to be in force. Because Japan has no de facto territorial authority

nor any police force there, it would be unlikely that these rules would have any teeth at

all. Similarly, the fact that an ethnic minority is disproportionately targeted does not

warrant giving an extraterritorial authority the power to punish O for an offence such

as theft. In short, even if the black population is being disproportionately targeted in

56 See section 4 o f the general Introduction to this thesis.

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the US, it is unlikely that they can claim a right to be tried before a Spanish or

Norwegian court. All they could claim is that the US courts should lack the power to

punish them. Ultimately, these objections only undermine, if anything, TS’s authority to

punish O; they hardly provide a good reason for an extraterritorial body being justified

in doing so.57

Third, and relatedly, not just anyone can carry out an international offence. Take

genocide for example. In the vast majority of cases, when genocide is carried out in TS,

TS would be responsible for perpetrating, instigating or allowing it, or simply unable to

do anything about it. Therefore, if a criminal rule against genocide is to be in force on

TS, TS must lack an immunity against PS punishing O for participating in this

genocide. Genocide, then, should generally be considered an international offence.

However, this might not always be the case. An instance of genocide might be

perpetrated by an individual acting alone. David Luban illustrates this with the strange

case of Abba Kovner, a poet and a survivor o f the Shoah, who in 1945 attempted to

poison the Hamburg water supply. Kovner claimed -it is reported- that his ultimate

goal was to kill six million Germans.58 An implication of the theory developed here is

that this act does not qualify as an international offence. And this would be the case

even if Kovner had succeeded. In short, the German criminal law prohibiting this kind

of behaviour does not require other states holding the power to punish O for it to be in

force. But then, why consider this example? The reason is that it illustrates well what

does the justificatory work in the explanation I advocate. There are specific territorial

considerations that impinge upon the reasons for making certain wrongs an

international offence. This also shows that the heinousness of the crime does not seem

to provide a sufficient reason as to why PS should hold the power to punish O for this

offence.

It is now clear that the crucial feature of international offences is explained neither

simply by the moral enormity of these acts, nor by the locus o f their commission. Nor

57 On this type o f objections, see Chapter 5 below.58 Luban, 'A Theory of Crimes against Humanity1, citing Tom Segev, The Seventh Million: The Israelis and the Holocaust (1993), 14-16.

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does it come down to the fiction that they harm or violate humanity itself. Rather, the

reason as to why they are international rather than municipal offences relies on the

interest that normally explains S’s power to punish O. With this fact he three significant

advantages of the explanation offered here. First, it suggests that the justification for

meting out legal punishment for both domestic and international offences rests on very

similar considerations. Secondly, it explains why TS lacks an immunity against PS

punishing O, and not simply a claim-right against PS intervening militarily to stop the

crimes (humanitarian intervention). And finally, it does not collapse the distinction

between international and domestic offences.

The next step is to see whether this explanation can also accommodate war crimes.

Let us take the crime of ‘intentionally directing an attack against a civilian population as

such’ committed as part of a plan or policy (hereinafter ‘attacking civilians’).59 Again,

my argument is that a criminal rule against this war crime cannot really be in force

unless the parties to an armed conflict lack an immunity against some extraterritorial

body punishing O for attacking civilians. This claim, however, needs further argument.

Unlike the case of crimes against humanity committed within TS, these crimes typically

involve two different states which could both claim the power to punish O. As a result,

their both holding criminal jurisdiction over such offences might suffice for the

prohibition against attacking civilians being in force. Let us call them Attacking State

(AS) and Defending State (DS) and assume that O is a pilot of the AS air force

attacking civilians in DS. Arguably, the fact that AS holds the normative power to

punish O for intentionally attacking civilians would not suffice for this criminal rule

being in force. Again, it is highly unlikely that AS would prosecute its own pilots for an

act it ordered, or allowed them to perform. But even if some prosecutions were to take

place, they would hardly suffice for individuals in DS to consider that the pilots, or

more importantly perhaps, AS’s high ranking officials are bound by such a rule.

However, one may wonder, would not DS — and no other state — holding the

power to punish O for these offences provide individuals in DS with the relevant sense

59 Arts. 8.1 and 8.2.(b)(i) o f the Rome Statute.

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of dignity and security that this criminal rule being in force is normally able to provide?

And if this is the case, would individuals in DS not have an interest in DS deciding itself

when O violated this rule, thus holding a prima fade immunity against third-party states

doing so? I suggest that this is not the case. The reason for this is, in short, that

although DS can deter this kind of attack, it cannot provide its civilian population with

the specific sense of dignity and security that a criminal law being in force provides.

Indeed, DS can deter O or AS high rank officials by means of retaliation or military

reprisals. It can also deploy some of its troops exclusively for the purposes of

protecting its civilian population. However, it is highly implausible that individuals in

DS or external observers will consider D S’s criminal prohibition binding on AS’s

personnel on the basis of DS’s power to punish them. As a result, individuals in DS will

not have a valid reason to consider their dignity and sense o f security protected by such

a rule o f criminal law being in force.

From the opposite side’s perspective, I suggest that individuals in AS also lack an

interest in AS (and DS) holding an immunity against third parties punishing O. O n the

one hand, they might have an interest in AS conducting warfare in accordance with

international humanitarian law, if only to avoid being victims of reprisals and

retaliation. For this purpose, it will certainly help that AS’s high ranking officials and its

soldiers consider themselves bound by, at least, the laws on war crimes. And on the

other hand, individuals in AS usually benefit also from the legal prohibition of war

crimes being in force, i.e., being binding upon DS; and this can only obtain, I

suggested, if some third (extraterritorial) party holds the power to punish O for war

crimes. Thus, both individuals in AS and in DS share an interest in neither AS nor DS

holding an immunity against some third party punishing O for war crimes. Moreover,

this explanation can easily account for the fact that under existing international law war

crimes cannot be committed by servicemen against their own military, something which

neither of the previous theories would be able to explain.60

60 See Pli^ Dutch Special Court of Cassation, and Motosuke, Temporary Court Martial o f the Netherlands East Indies, at Amboina. Both in Cassese, International Criminal Law, 48.

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5. Do we need a theory of international crimes?

Altman and Wellman have argued against the project of defining certain categories of

“super crimes” which would provide a compelling justification for overriding state

sovereignty and would ground “international criminal jurisdiction over moral wrongs

that do not cross borders”.61 They call this project the ‘received view* and propose a

different way of thinking about international criminal law. In particular, they take issue

with the ‘heinousness’ requirement that the received view attaches to international

offences, and suggest that extraterritorial prosecutions should potentially apply also to

ordinary or municipal crimes. The central tenet of their position is that international

prosecutions should be warranted in a failed state when an “accumulation of separate

criminal acts [are being] committed by individuals operating solo.”62 From this it

purportedly follows that the concept of an international offence has no part to play in a

theory o f international criminal law.

By contrast, Altman and Wellman provide an explanation o f when and why it is

justified to “pierce state sovereignty” that mirrors the justification for humanitarian

intervention. They put forward certain conditions under which a state loses its right

against suffering military intervention by an external authority. The threshold is

established at the point where states are unwilling or unable to prevent systematic or

widespread violations of individual rights.63 It follows that either widespread or

systematic violations of basic rights would suffice, by themselves, to interfere in TS’s

internal affairs by punishing O. This, they argue, is the sole criterion necessary to justify

extraterritorial prosecutions.

However, I suggest that it pays to look more closely at what is doing the

justificatory work in their argument. If it is the “widespread or systematic” character of

offences, then it should be irrelevant whether TS has become a failed state. Thus, if

bicycle theft, or credit card fraud were perpetrated on a widespread or systematic basis,

61 Andrew Altman and Christopher Heath Wellman, 'A Defense o f International Criminal Law', Ethics 115, no. 1 (2004), 43.62 ibid, 49.63 ibid, 48.

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then their argument commits them to the claim that those responsible for these

offences would become liable to extraterritorial prosecutions. This, however, is far less

appealing than their initial picture. And this arguably is precisely because bicycle theft

and credit card fraud are not heinous or grave enough crimes. I suspect that the moral

pull their argument has comes from the fact that TS has become a failed state, not from

the fact that some offence is committed on its territory on a widespread or systematic

basis.

But how convincing is this consideration as an explanation o f extraterritorial

prosecutions? Admittedly, PS should hold the power to punish O for a municipal

offence perpetrated on the territory of a failed state (TS) if it militarily occupies TS.

However, there are three difficulties with this line o f argument. First, I doubt that

widespread fraud in TS would warrant giving PS the liberty to occupy militarily TS.

Secondly, if PS becomes an occupying power then its criminal jurisdiction becomes

based on the territoriality principle, not on universality grounds as Wellman and Altman

contend. And finally, if PS becomes an occupying power on TS then it would hold the

power to punish O regardless of whether the relevant offence was committed on a

widespread or systematic scale. That is, it would also be entided to punish any single

murder or robbery committed there.

Finally, I wonder how convincing is their explanation for the proposition that

international prosecutions would be justified against any widespread or systematic

municipal offences committed on the territory of TS. They suggest that, just as the right

to interfere with an abusive parent is explained by the interest of the child, PS’s power

to punish O is explained by the interest of individuals in TS. Thus, the crucial question

is what interest o f individuals in TS justifies PS holding, in particular, the power to

punish O. Altman and Wellman fail to provide an explicit answer to this question.

What would be analogous to interfering with an abusive parent, they suggest, would be

to intervene on humanitarian grounds on the territory of TS to stop the commission of

the offences. However, and without addressing this sensitive issue, it seems utterly

unconvincing to suggest that PS holds a right to intervene in TS on grounds of

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systematic fraud, or widespread tax evasion. Moreover, the main problem with this

argument is that while humanitarian intervention is purely prospective in nature,

punishment is applied retrospectively. In other words, while the right to intervene is

grounded on widespread or systematic offences currently being perpetrated on TS, or a

substantial threat thereof, punishment could come about after these violations have

stopped. Thus, this argument would not be able to explain why PS holds an

extraterritorial power to punish O when the widespread or systematic offences have

ceased. But what is worse, I suppose, neither would TS. In short, this justification has

the unacceptable implication of making the power o f any state to punish O conditional

on these offences still being perpetrated at the time.

To conclude, then, I argue that their view o f the scope o f international criminal law

is ultimately unconvincing. And that the reason for this is, in part, that they reject the

claim that the gravity of the crime has some role to play in the justification for

extraterritorial prosecutions. I am sympathetic to their underlying claim that the

heinousness o f a particular offence should not be taken at face value as a sufficient

reason for recognmng an extraterritorial body having the power to punish O. They are

right in that, at least, it should be explained what role this particular consideration plays

in a general theory of international criminal law. Nevertheless, this should not be

mistaken with the claim that the heinousness o f the offence has no role at all to play in

the argument for extraterritorial prosecutions. Their mistake is that they believe that the

“received view” cannot but rely on the unpersuasive argument that international crimes

are simply those which are so morally egregious as to harm humanity itself.64 In this

chapter I have clarified both what is the normative consideration that explains why

certain offences warrant conferring upon some extraterritorial authority the power to

punish O, and what is the justificatory work that the gravity or heinousness of these

offences does. I submit that this suffices to account for the need of a concept of

international crimes in a general theory of international criminal law.

64 ibid, 50.

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6. Terrorism as an International Crime

Before closing this chapter let me examine the implications of the theory of

international offences I advocate for a particularly controversial case: terrorism. After

9/11, terrorism has jumped to the forefront of debates concerning international crimes.

Before we go on to examine whether this category of offences should be made into

international crimes, two caveats are in order. First, several authors have pointed out

relevant parallels between the pirate and the terrorist as simply outlaws.65 Gerry

Simpson argues that under the current prevailing narrative, the terrorist is the new

pirate.66 For many, this means “that participating in an act o f terrorism questions, and

in some cases forfeits, an individual’s right to have rights.”67 Thus, the pirate-terrorist is

often situated outside the law: he is neither an enemy combatant, nor a criminal. He

floats in some sort of legal black hole, as it seems to be the case with prisoners being

held in Guantanamo Bay.68 In this chapter, however, I will focus on their treatment as

criminal suspects, with the relevant rights and safeguards that all criminal suspects

should enjoy.

Secondly, I shall not tackle here the complicated questions o f what exacdy

terrorism is, why it is wrong, or whether it might be permissible under certain

65 M. Reisman, 'In Defence o f Public Order', American Journal of International haw 95, no. 4 (2001).66 Simpson, haw, War and Crime, 159. In the words o f Frey and Morris, it is sometimes argued that “[t]he terrorist differs from the criminal or gangster, who seeks wealth, power, status through illicit means; for the latter’s activity in some sense depends on civil society. By contrast, terrorist, through their relatively indiscriminate targeting o f civilians, expliddy reject familiar political categories and the limitations on violence they embody” (in R. G. Frey and Christopher W. Morris, Violence, Terrorism, and Justice (Cambridge [England]; New York: Cambridge University Press, 1991), 13).67 O ’Keefe in Michael P. O'Keefe and C. A. J. Coady, Terrorism and Justice: Moral Argument in a Threatened World (Carlton South, Victoria: Melbourne University Press, 2002), 107 citing the overview in James M. Poland, Understanding Terrorism : Groups, Strategies, and Responses (Englewood Cliffs, N.J.: Prentice Hall, 1988), 5-7. The same was once argued about pirates (see Kontorovich, 'The Piracy Analogy: Modem Universal Jurisdiction's Hollow Foundation', citing the classical treatment by De Vattel, and Vaughan Lowe, "Clear and Present Danger': Responses to Terrorism', International and Comparative Taw Quarterly 54 (2005)).68 See Johan (Lord) Steyn, 'Guantanamo Bay: The Legal Black Hole', International and Comparative haw Quarterly 53 (2004).

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circumstances.69 These questions are extremely controversial both as a matter of theory

and as a matter of legal practice. There is arguably no standard definition of terrorism

as a discrete offence under international law.70 International treaty law seems to provide

only a piecemeal approach, criminalizing certain specific forms of terrorist activities,

such as hijacking of aircraft, taking hostages, unlawful acts against the safety of

maritime navigation, the financing of terrorism, and so on.71 Some of them are even

criminalized as war crimes or crimes against humanity.72 For clarity’s sake, I shall use

what McMahan refers to as the “orthodox definition”, i.e., politically or ideologically

motivated violence that is directed against civilians or non-combatants.73 The issue at

stake is only whether TS lacks an immunity against some extraterritorial authority

holding the power to punish O for a terrorist attack committed in TS.

The standard view on this question seems to be that there are some forms of

terrorism which belong in the category o f municipal offences, as defined here. For

example, Article 3 of the UN Convention on terrorist bombing provides that “this

Convention shall not apply where the offence is committed within a single State, the

alleged offender and the victims are nationals of that State, the alleged offender is

found in the territory of that State and no other State has a basis ... to exercise

jurisdiction”.74 By contrast, other terrorist acts would amount to international crimes as,

for example, when they “transcend national boundaries”, “are carried out with the

support, the toleration, or the acquiescence o f the State where the terrorist organization

69 On this see, generally, Frey and Morris, Violence, Terrorism, and Justice; Ted Honderich, Terrorism for Humanity : Inquiries in Political Philosophy (London; Sterling, VA: Pluto Press, 2003); O'Keefe and Coady, Terrorism and Justice : Moral Argument in a Threatened World; McMahan, 'The Ethics o f Killing in War'; David Rodin, 'Terrorism without Intention', Ethics 114 (2004); Samuel Scheffler, 'Is Terrorism Morally Distinctive', The Journal of Political Philosophy 14, no. 1 (2006); Jeremy Waldron, Terrorism and the Uses o f Terror', Journal of Ethics 8 (2004).70 For a dissenting view on this, see Cassese, International Criminal Taw, 120-125, and some literature in footnote 126.71 See the Conventions on the safety of civil aviation (the Tokyo Convention o f 1963 and the Montreal Convention o f 1971), the New York Convention against the taking o f hostages (1972), and the UN Convention for the suppression o f the financing o f terrorism (1999), among others.72 See, e.g., article 4(2)(d) of the Second Additional Protocol o f 1977 to the Geneva Conventions.73 McMahan, 'The Ethics o f Killing in War', 729. For criticism o f this view, see Scheffler, 'Is Terrorism Morally Distinctive', 2.74 There are some qualifications to this principle which are not entirely relevant for our purposes here. For a similar provision see Art. 3 o f the Convention for the suppression o f the financing o f terrorism.

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is located or o f a foreign State”, they “concern (...) the whole international

community”, or “are very serious or large-scale”.75 In the following paragraphs I will

defend and further clarify this rough distinction. I will also add certain caveats. For this

purpose I shall distinguish, perhaps a bit schematically, between internal and cross-

border terrorism on the one hand, and between state or state sponsored terrorism and

terrorist acts performed by non-state actors (without the acquiescence or support of a

state) on the other.

The principles that should govern a state’s criminal jurisdiction over internal

terrorist acts by non-state organizations are quite straightforward. According to the

general argument advocated here, TS should hold an exclusive power to punish O for a

terrorist act performed on its territory. Put boldly, the struggle with terrorist

organization ETA should be left for the Spanish (and eventually the French) to deal

with. And them alone. Individuals in Spain lack an interest in the UK, China, etc.

holding the power to punish a Basque separatist for an attack carried out in Madrid.

They have an interest in Spain dealing with ETA. And the reason for this is precisely

that some extraterritorial authority unilaterally claiming the power to punish O would

not contribute in any meaningful way to the sense of dignity and security they enjoy as

a result o f their (the Spanish) criminal rule against these acts being in force. Neither

would it contribute, I may add, to the sense of dignity and security that individuals

enjoy in China, the UK, etc. as a result o f their criminal prohibition of terrorism being in

force. Thus, following the court in Republic of Bolivia v Indemnity Mutual Marine Assurance,

this means that “[w]holly domestic terrorism ... needs no international action but can

be left to local laws to deal with like any other criminal conduct.”76

Nevertheless, this arguably holds only in so far the terrorist attacks do not become

widespread or systematic. If this obtains, it will be again because TS is in collusion with

the terrorists, unwilling or simply unable to do anything about their acts. I would then

submit, with Mark Drumbl, that these offences should move from domestic or,

75 Cassese, International Criminal Law, 129.76 at 6.

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eventually, transnational criminal law to international criminal law proper.77 Indeed, in

such a context the interest of individuals in TS in this rule being in force would

override their interest in handling these cases by themselves. But this conclusion should

have been expected. Widespread or systematic acts of terrorism are in no meaningful

sense different from widespread or systematic acts of torture, murders, attacks on

civilians, etc.

I also submit that internal state terrorism, i.e. terrorist actions pursued as a matter

of policy by TS officials in TS, should qualify as an international offence in the

jurisdictional sense I advocate here.78 This is, again, because individuals in TS have a

fundamental interest in the criminal rules prohibiting enforced disappearances, torture,

rape, and murder being in force and no prohibition of such acts could ever be in force,

i.e. binding on TS’s officials, unless some foreign authority holds the normative power

to punish O extraterritorially.

Some people might want to argue that once state terrorism is over in TS, because

o f regime change or otherwise, TS should “recover” its immunity against foreign

bodies punishing O for acts of terrorism performed by TS as a matter of policy. I

disagree. I would argue that individuals in post-Pinochet Chile have a fundamental

interest in there being a criminal rule prohibiting state terrorist acts in force in Chile,

and that this criminal rule can be in force in Chile only if some foreign body holds a

concurrent power to punish O extraterritorially. The force of the objection, however,

lies in the question regarding how much this would contribute to the sense of dignity

and security of individuals in Chile today, since these acts are not taking place any

longer. This is a hard empirical question to answer. The damage that state terrorism can

cause to a society is very difficult to measure. The sense of vulnerability and lack of

77 Drumbl, Atrocity, Punishment, and International Im w , 212, note 221.78 For a philosophical account o f state terrorism, see Igor Primoratz’s ‘State Terrorism’, in O'Keefe and Coady, Terrorism and Justice: Moral Argument in a Threatened World, and Jonathan Glover’s ‘State Terrorism’ in Frey and Morris, Violence, Terrorism, and Justice and Scheffler, 'Is Terrorism Morally Distinctive', 11-15.

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confidence in the rule o f law might be persistent for vast numbers of individuals.79 This

translates into fear towards public authorities, a feeling of helplessness and lack of

rights, the inhibition of certain kinds of cooperative social relations, and so on.80

Although criminal prosecutions will certainly not suffice to undo the effects of state

terrorism, I suggest that they would certainly contribute to the feeling that the criminal

rule prohibiting this conduct is again in force, and with this, bring individuals new

confidence in their status as right bearers, whether the Chilean state likes it or not.

Moreover, this power to punish O cannot depend on the fact that Chileans, themselves,

feel at risk of being kidnapped, tortured and killed by state officials. Otherwise, even

the Chilean state would lack the power to punish crimes performed by the Pinochet

regime. Put differently, this issue points not to the question o f whether extraterritorial

prosecutions should be conducted over Chilean state tortures, but to the question of

whether any authority should hold the power to punish something that happened 25

years ago. As mentioned in the introduction to this chapter, this question, which closely

relates to the issue o f whether statutes of limitations apply to international offences, is

beyond the scope of the present enquiry.

Cross-border terrorism, by contrast, would normally be considered an international

offence.81 However, I suggest that this view is unwarranted. The jurisdictional rules

applicable to domestic offences seem to suffice to bring about the benefits on which

the power to punish offenders generally rests. Indeed, under this framework the US

would hold the power to punish everyone involved in the attacks of 9/11 (on grounds

o f territoriality and/or protection). And so would Afghanistan. Thus, if Russia obtained

custody over Bin Laden and tried him for this offence, the US and Afghanistan might

consider this an intrusion in their domestic affairs, and rightly so. Similarly, the UK,

79 For a powerful illustration, see Ariel Dorfman, Death and the Maiden (London : Nick Hem, 1995), where Paulina, who was systematically tortured and raped by the Pinochet’s regime, reencounters the doctor in charge o f overseeing her torture by sheer chance.80 See Waldron, Terrorism and the Uses o f Terror' and Scheffler, 'Is Terrorism Morally Distinctive', 13.81 This opinion has been shared by prominent international lawyers and officials such as Kofi Annan, Mary Robinson, Robert Badinter, Alain Pellet and Geoffrey Robertson (cited in Antonio Cassese, 'Terrorism Is Also Disrupting Some Crucial Legal Categories o f International Law', European Journal of International Law 12, no. 5 (2001), 994). For a careful defence o f this claim see Mark A. Drumbl, 'Judging the 11 September Terrorist Attack', Human Lights Quarterly 24 (2002), 323, discussed below.

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Spain, and other countries where A1 Qaida cells are functioning would hold the power

to punish their members on the basis of the territoriality or protective principles. This

way of distributing the power to punish acts of international terrorism is not only

intuitively appealing. It is also consistent with the justification for punishment

advocated here. To wit, individuals in the US would have good reasons to believe that

its criminal prohibition of this kind o f acts is in force irrespective of Russia holding a

concurrent power to punish O. Accordingly, they have an interest in the US's criminal

rules applying on its territory exclusively, and this interest is sufficiently important to

warrant giving the US an immunity against Russia doing so. Moreover, individuals in

Russia have no interest in Russia holding a power to punish O for the 9/11 attacks that

is sufficiently important to trump that immunity. Their criminal prohibition of terrorist

attacks does not require that in order to be in force. Again this argument holds only in

so far these offences, both by non-state actors or state-sponsored, are not carried out in

TS on a widespread or systematic basis.

But many commentators would probably object to this conclusion. Mark Drumbl,

for instance, suggests that international terrorism “is not a matter to be left to domestic

criminal law”, but rather it is “in the interest of all humanity to prosecute”.82 The main

reason for this is that leaving this to TS “may not be a particularly effective way to build

a widespread, deep-rooted social norm that condemns terrorism in the places where

disaffected individuals may be inspired to join terrorist movements.”83 On the one

hand, he suggests that westem-style trials would do little to deter potential terrorists

since they may have little legitimacy to affect social norms or behaviour patterns in

societies where terrorism emerges.84 On the other hand, prosecuting al-Qaeda members

in domestic courts trivializes the evil o f the attack.85 Thus, he concludes, international

terrorists should be brought to account before an international court.

82 Drumbl, 'Judging the 11 September Terrorist Attack', 323 and 338, respectively.83 ibid, 324.84 ibid, 348, emphasis added.85 ibid, 342.

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I am unpersuaded that these arguments warrant the purported conclusion, namely,

that an extraterritorial authority should hold the power to punish O to the exclusion of

any domestic court. Let me take them in turn. First, it is difficult to argue that a trial in

a domestic court would trivialize the evil o f the offence. The trials of Barbie and

Eichmann, for example, seem to have had significant symbolic power. In a similar vein,

people do not seem to consider it necessary to try very serious domestic offences, such

as multiple murder or rape, before international courts. Secondly, the goal of deterring

potential terrorists would not lead, as Drumbl seems to believe, to extricating the

power to punish O from domestic authorities. Afghanistan and the US holding the

power to punish A1 Qaeda militants might have some deterrent effect. Even if this

would not maximize that effect, I am unpersuaded that this consideration suffices as an

argument against them holding that power. Moreover, maximizing that effect would

probably lead to summary executions rather than international trials.86 Finally and

perhaps most significandy, Drumbl seems to undermine the central tenet of his

argument himself. In effect, he argues that “[h]owever foreign [Pashtuns’] customary

set of laws may seem to many Westerners..., in order for terrorism to be viewed by

Pashtuns as a repugnant social norm to be stamped out, it will be (sic) have to be

constructed as deviant and repugnant conduct throughout all elements of Pashtun

society.”87 Thus, Drumbl wants to have his cake and eat it. He wants to have a court

formed essentially by judges of the same community (political, ethnic or otherwise)

from where the alleged perpetrators come from, which would apply the set o f local

rules recognized by that community, and he wants to call this an international court.

Finally, DrumbL wants this court to perform a trial that will satisfy both Western

standards and the Pashtun society. I am afraid this is not something that would be

easily achieved.

To sum up, creating the conditions that would make terrorism a form of

unacceptable, criminal behaviour in the relevant communities where members o f these

86 As for example executing terrorists driving in Yemen. On this, see Lowe, "Clear and Present Danger1: Responses to Terrorism' and Chapter 2 above.87 Drumbl, 'Judging the 11 September Terrorist Attack', 349.

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organizations are usually recruited should certainly guide the policy towards terrorism.

However, this neither leads to the claim that only an international court should hold the

power to punish O, nor does it mean that this aim excludes the interests of other

relevant stakeholders. In short, I argue that although the U.S. population may have an

interest in, for example, the Afghan local authorities prosecuting and punishing

members of terrorist organizations plotting attacks abroad, or recruiting volunteers,

they also have an interest in their respective criminal laws against terrorist attacks being

in force. Thus, I argue that cross-border terrorism, state-sponsored or otherwise,

should not be categorized as an international offence in the sense advocated here,

unless it becomes widespread or systematic.88

7. Conclusion

This chapter relies on three propositions. First, what is in need o f normative elucidation

about international crimes is their particular jurisdictional regime, i.e., the fact that some

extraterritorial authority holds the power to punish O. Secondly, that in order to

provide a convincing explanation for this normative fact we need to look at the reasons

why authorities (states and international tribunals) hold the power to punish an

offender in the first place. And third, that the reason why states hold the power to

punish offences is that this contributes to the sense of dignity and security of

individuals living there.

On this basis, I argued that international crimes are simply those offences for

which a criminal rule cannot be in force on the territory of TS unless at least some

extraterritorial authority holds a concurrent power to punish O. This is because

whenever, for example, crimes against humanity are committed on the territory o f TS,

that state must either be responsible for perpetrating, instigating or allowing them, or

simply unable to do anything about them. As a result, the fact that TS itself criminalizes

this kind of act cannot really contribute to the sense of dignity and security of

individuals in TS. Put differently, the interest of individuals in TS in its criminal

88 An interesting hard case might be the first and second Intifada against Israel.

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prohibition being in force requires that TS lacks an immunity against some

extraterritorial court punishing O.

I further clarified this position in two respects. First, I argued that although non­

state actors can also carry out international offences when they hold de facto a significant

portion of the powers which are often associated with the state over a certain territory,

enormous crimes by individuals acting alone would not normally qualify as international

crimes (even if they amount to genocide). Secondly, not every wrong committed in TS

on a widespread or systematic scale would warrant conferring upon an extraterritorial

authority the power to punish O. International offences need to reach some threshold

o f gravity. I defended this view against the objection that the heinousness often

attached to international offences should not play any role in the justification of

extraterritorial or international prosecutions.

The last section of this chapter examines whether terrorism should qualify as an

international crime. I argued that instances of purely domestic acts of terrorism should

not be made into international offences, unless they are perpetrated on a sufficiendy

widespread or systematic basis. By contrast, I suggested that acts of state terrorism

should warrant conferring upon an extraterritorial authority the power to punish their

perpetrators. Finally, I argued that the jurisdictional rules applicable to domestic

offences suffice to deal with acts of cross-border international terrorism, such as the

9/11 attacks.

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4Extraterritorial jurisdiction for international offences

‘There are also those who think that an act of cruelty committed, for example, at Constantinople may be punished at Paris for [the] abstracted reason that he who offends humanity should have enemies in all mankind . . . as if judges were to be the knights errant of human nature in general, rather than guardians of particular conventions between men. ’n

‘To pursue the outlaw and knock him on the head as though he were a wild beast is the right and duty of every law-abiding man.

1. Introduction

In this chapter I shall provide a philosophical argument for universal criminal

jurisdiction (henceforth UJ). I shall contend that both individual states and a particular

international tribunal, the International Criminal Court (hereinafter the ICC) should

have the normative power to punish O for international crimes regardless o f where the

offence was committed, or of the nationality of both offender and victim.3 The

literature on universal jurisdiction is vast, even unmanageable. However, many

specialists complain about its ‘under-theorization’.4 Universal jurisdiction is arguably the

most difficult case for a theory of punishment like my own, which is based mainly on

territorial considerations. This is because it not only entails conferring criminal

jurisdiction in the absence of any link or nexus between the prosecuting body and the

1 Cesare Beccaria, On Crimes and Punishments (Indianapolis, Ind.: Hackett Pub. Co., 1986).2 Frederick Pollock and Frederic William Maitland, The History of English Eaw (Cambridge: Cambridge University Press, 1898 [1911]), 569-579, cited in Cowles, 'Universality o f Jurisdiction over War Crimes'.3 I do not distinguish here conceptually between universal jurisdiction, commonly exercised by states, and international jurisdiction, normally claimed by international or internationalized tribunals. On this see section 2 below.4 Leila Nadya Sadat, 'Redefining Universal Jurisdiction', New England Eaw Review 35, no. 2 (2001) and Anthony Sammons, 'The "Under-Theorization" O f Universal Jurisdiction: Implications for Legitimacy on Trials o f War Criminals by National Courts', Berkeley journal of International Eaw 21 (2003). See also Theodor Meron, 'International Criminalization o f Internal Atrocities', The American journal of International Eaw 89, no. 3 (1995), 563.

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crime. In addition, and crucially, it entails providing an argument that accounts for every

state and a particular court created by some of them holding the power to punish O

extraterritorially. These are the specific normative issues that the argument I shall

develop here will concentrate upon. Accordingly, I shall leave aside other sources of

difficulties that affect both territorial and extraterritorial authorities alike such as, for

instance, whether criminal trials are an appropriate response to mass atrocities in

general.5

The structure of the chapter is relatively straightforward. In section 2 ,1 shall argue

that the justification for legal punishment advocated in this thesis endorses the

proposition that every state should hold a power to punish international offences that is

universal in scope.6 Moreover, I shall argue that the normative account I offer in this

thesis is better suited than any alternative account available in the literature to explain

not only the peculiar normative features o f UJ, but also to reconcile this explanation

with a more comprehensive account o f extraterritorial punishment. Section 3 examines

the case for the International Criminal Court holding UJ. I will take issue with the

standard arguments that purportedly account for the scope of its power to punish O

and argue they are theoretically flawed. I will also suggest that under a more plausible

normative account the jurisdiction held by the ICC as a matter of law is unduly

restricted at the bar of justice. Finally, section 4 will handle a handful of objections

raised against this ‘pure’ form of extraterritorial punishment. I will conclude that

although some of these objections do raise significant obstacles to the principle of

universal jurisdiction, none of them is capable of rebutting the case I made in the first

two sections.

To the reader, I suspect, this way of organizing my argument might seem strange.

Indeed, in the previous chapter I argued that international crimes are those for which at

5 This distinction has rarely been acknowledged in the literature. See, e.g., Meron, 'International Criminalization o f Internal Atrocities'; Osiel, Why Prosecute? Critics o f Punishment for Mass Atrocity'; Tallgren, 'The Sensibility and Sense of International Criminal Law'; and Drumbl, Atrocity, Punishment, and International Imw.6 Provided it satisfies the conditions to claim, itself, legitimate authority. These conditions are set in Chapter 5 below.

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least some extraterritorial authority should have the power to punish O. Would it not be

natural to examine the case of a global criminal court holding this kind o f power first?

The case for individual states holding UJ would seem harder, and better left till last.

The problem with this approach, however, is that the ICC is not a global criminal

court. Rather it is a treaty body created in virtue of an agreement between a certain

number of states. As a matter o f law, treaties can only create rights and obligations for

their parties.7 As a matter of fact, three of the biggest powers in the international

community (the U.S., China and Russia) not only are not parties to this treaty but

perceive the ICC as a threat. By contrast, these states (and many others) are arguably

not, at least in principle, against individual states holding UJ over international crimes.

Thus, it is far from clear that the argument I provided in Chapter 3 would lead to the

ICC holding UJ to try O for an international crime. Rather, and according to the

leading explanation available in the literature, the scope of the ICC’s criminal

jurisdiction is to some extent dependent on the jurisdictional scope of its state-parties.

The same two clarificatory remarks I made in Chapter 2 hold here. First, I am

concerned only with the power to punish O, not with the liberty or claim-right to obtain

custody over her extraterritorially. This entails assuming also throughout this chapter

that either the defendant (O) is present on the territory of the state that claims

jurisdiction over her at the point when it wants to exercise its power, or the court which

claims a right to try her has to request her extradition. And secondly, I will only

examine here the grounds on which individual states or the ICC can claim jurisdiction to

punish O. This is not the same as the particular conditions that each concrete

institution should meet in order to claim, itself this normative power. An argument for

this purpose will be provided in Chapter 5 below.

7 See, e.g., article 26 o f the Vienna Convention o f the Law o f Treaties; see, also, Brownlie, Principles of Public International Law, 592.

2. The case for states* universal criminal jurisdiction

In this section I shall argue that under current non-ideal conditions individual states

ought to be granted UJ over international crimes. This is a normative claim and it is the

main claim I will defend here. But first, a conceptual point is in order. I understand UJ

as the power of some entity (in this case PS) to punish O irrespective of where she

perpetrated her offence and of the nationality of both O and V. Moreover, a crucial

feature of the regime of UJ is that every state can claim this power.

2.1 A conceptual point

Ian Brownlie famously warns against conflating the proposition that every state holds a

power to punish crimes under international law with the principle of universality.

Universality, he claims, is only about individual states holding the power to punish

certain crimes under their domestic law, for which international law recognizes every

state’s criminal jurisdiction.8 Anne-Marie Slaughter clarifies his position as follows:

“ [t]he principle o f universality... is a procedural device by which international law grants

all states jurisdiction to punish specified acts that are independently crimes under [their]

national law.”9 Piracy is allegedly the paradigmatic example because, they contend, it

has traditionally been defined and prosecuted under domestic law.

This distinction seems to challenge the framework defended here. However, I

suggest it does nothing of the kind. Rather it is useful as it forces us to distinguish

between conceptual and normative philosophical issues and these, in turn, from issues

regarding specific institutional arrangements. But let us deal with things one at a time. I

must first explain what we mean by UJ. This is a conceptual issue. I suggested that UJ

consists in PS holding an extraterritorial power to punish O irrespective o f where she

had committed the offence or her nationality or that o f V. This definition is

uncontroversial enough and is, in fact, consistent with Brownlie’s position.

8 ibid, 303.9 Anne-Marie Slaughter, T)efining the Limits: Universal Jurisdiction and National Courts’, in Stephen Macedo, Universal Jurisdiction : National Courts and the Prosecution of Serious Crimes under International Law (Philadelphia, Pa.: University o f Pennsylvania Press, 2004), 169, 319, quoting Brownlie.

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As a separate question we will need to determine whether certain crimes, such as

those covered in my previous chapter, warrant conferring upon states UJ to punish O.

We can examine this issue both as a matter of normative argument or as a matter of

international law. Brownlie and Slaughter’s claim is that UJ refers to offences provided

for under domestic criminal law as a matter of law. Accordingly, if we consider this as a

technical statement about a particular set of institutional arrangements regarding UJ,

this position (whether it is right or wrong) is irrelevant for our purposes here. My

objective is, rather, to explain why certain offences should warrant UJ. And this is a

philosophical issue o f a normative kind.

If, by contrast, we are to consider their statement as a philosophical claim about what

moral powers states have at the bar of justice, they are both conflating the conceptual

question I have identified with the normative one, and begging the latter. By advocating

such a restrictive conceptual definition of UJ they rule out a normative possibility as a

matter of definition. Yet, they do not provide any normative argument as to why UJ applies

only to crimes provided under PS’s domestic criminal laws. I do not suggest that their

claim is subject to this kind of criticism. But it follows from this that their objection

does not really undermine the conceptual framework advocated here which states that

UJ applies to international crimes.

The same criticism can be made against Bassiouni’s exact opposite proposition that

universal jurisdiction should not be conflated with the universal reach of extraterritorial

national jurisdiction.10 The concept o f universal jurisdiction he advocates, which is

contained in Principle 1 o f the Princeton Principles on Universal Jurisdiction, is that of

“criminal jurisdiction based solely on the nature of the crime, without regard o f where the

crime was committed, the nationality of the alleged or convicted perpetrator, the

nationality of the victim, or any other connection to the state exercising such

jurisdiction”.11 I am obviously very sympathetic to this definition. However, I believe

Bassiouni is also smuggling a normative point into a conceptual one. In other words,

10 Bassiouni, The History o f Universal Jurisdiction and Its Place in International Law’, in ibid, 42.11 ibid. Emphasis added.

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whether universal jurisdiction is based solely on the nature of the crime is a normative

claim for which he needs to argue, not part of its definition.

To repeat, then, universal criminal jurisdiction is, for present purposes, the power

o f an authority to punish O for an offence committed extraterritorially, irrespective of

where she perpetrated her offence and of the nationality of both O and V. This concept

of UJ applies equally to individual states and to international criminal tribunals. This

statement does not mean though, or not yet, that the powers that each of these hold are

normatively grounded on the same considerations. So far I commit myself to the

former view, not to the latter.12

2.2 An argument for states having UJ over international crimes

As a matter of public international law, it may be argued that UJ is probably, but not

unambiguously part o f customary international law.13 Judges Higgins, Kooijmans and

Buerghenthal’s joint separate opinion in the Arrest Warrant case is arguably one o f the

most authoritative statements on this. They argued that “[tjhere are certain indications

12 Similarly see Reydams, Universal Jurisdiction : International and Municipal Legal Perspectives. We should not conflate the question asked in this chapter with that regarding the distinction between the narrow notion o f universal jurisdiction, which entails that only the state where the accused is in custody may try her (called forum deprehensionis), and a broad notion also called absolute or pure universality, which entails that S can prosecute O even if she is not at the time in the forum state. This distinction should neither be treated as a conceptual question, but as a normative one. What is at issue is not what is the meaning o f universal jurisdiction, but rather what is the scope o f states’ power to punish O, or the conditions under which PS is in a position to exercise this power. The relevance o f this consideration will be examined in Chapter 5 below.13 Bassiouni argues that it cannot be inferred solely from existing state practice and opinio juris that universal jurisdiction is part o f customary international law, but he contends that the cumulative effect o f state practice, opinio juris, general principles of law and opinion by publicists does in fact suffice to make it into a rule o f CIL (Bassiouni, 'Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice1, 148-149). Cassese on his part considers that UJ is warranted for certain offences under CIL (Cassese, International Criminal Law, 293-295). Higgins, starts her section on this matter by stating that “International law permits the exercise of jurisdiction in respect o f certain offences against the international community.” (Rosalyn Higgins, Problems and Process : International Law and How We Use It (Oxford: Clarendon Press, 1994), 56). Finally, the authors in Oppenheim’s International Law recognize that “[tjhere are now very few writers who deny absolutely the right o f a state to punish aliens for crimes committed abroad.” However, that statement refer both to universal jurisdiction and also to certain cases in which jurisdiction is justified on the basis o f the protective principle (Oppenheim et al., Oppenbeim's International Law / Vol. 1, Peace, 467, and 469 on international offences). Cryer concludes that the “level o f support is sufficient to suggest that the customary case for universal jurisdiction over core crimes can be made” (Cryer, Prosecuting International Crimes, 93).

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that a universal criminal jurisdiction for certain international crimes is clearly not

regarded as unlawful.”14 In any case, UJ seems to be largely uncontroversial with

respect to certain offences such as genocide, war crimes and crimes against humanity,

even if there is also agreement that it is only very seldom exercised by states.15

For our purposes, however, this basis of jurisdiction needs to be defended on very

different grounds. I have suggested that the extraterritorial scope of PS’s power to

punish O is dependent on the justification for PS holding that power in the first place.

In Chapter 1 ,1 argued that the normative power to punish O is based on the collective

interest o f individuals in PS in having a system of criminal laws in force. This is because

having a set of rules prohibiting murder, rape, etc. in force contributes to their sense of

dignity and security. In Chapter 2, however, I argued that this justification is, in

principle, against the extraterritorial application o f domestic criminal rules, except on

grounds of protection (that is, except when PS’s power to punish O is based on the

interest o f individuals in PS in having there a system o f criminal laws in force

extraterritorially). The reason for this is threefold. First, individuals in TS have an

interest in TS being a self-governed entity that is sufficiently important to warrant

conferring upon TS a prima facie immunity against extraterritorial authorities punishing

offences committed on its territory. Secondly, individuals in TS lack an interest in PS

holding such a power because PS’s domestic criminal laws cannot be in force on the

territory o f TS. Finally, I argued that individuals in PS lack an interest in PS punishing

offences committed on TS.

However, as we saw in Chapter 3, there are certain criminal rules which cannot be

in force in TS unless at least some extraterritorial authority holds a concurrent power to

punish O. The reason for this is that whenever one of these crimes is perpetrated in TS,

it will be necessarily the case that TS is either responsible for perpetrating, instigating or

14 See paragraphs 45-46. It must be noted, though, that o f the judges who addressed this matter in the Arrest Warrant case, four were against the existence of UJ and five explicidy in favour. There is some degree o f expectation regarding what would be the ICJ’s decision in the Certain Criminal Proceedings in France (Republic of the Congo v France) case.15 See Slaughter, T)efining the Limits: Universal Jurisdiction and National Courts’, in Macedo, Universal Jurisdiction, 170.

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allowing it, or simply unable to do anything about it. As a result, the fact that TS

criminalizes this kind of acts cannot really contribute to the sense o f dignity and

security of individuals in TS. I have called these offences international crimes. I now

want to argue that, as a matter of normative argument, every single state should have the

extraterritorial power to punish O for her offence on TS irrespective of the nationality

o f O and V.

Take widespread or systematic torture. The first limb of my argument was made in

my previous chapter. I argued there that TS lacks a prima facie immunity against

extraterritorial authorities punishing O for an international crime committed on its

territory. This is because individuals in TS have a fundamental interest in there being a

criminal rule in force in TS against widespread and systematic acts of torture. This

interest is not only incompatible with TS holding an immunity against PS punishing O,

but it also overrides the interest that explains that immunity. This explanation, however,

does not yet amount to an argument for UJ. What I need to explain in particular is why

every state would hold the power to punish O.

I have already identified what the relevant interest is that, I argue, explains PS’s

power to punish O. It remains for me to argue here who the holder of this interest is in

these particular cases, and what the implications o f this are for establishing who the

holder of the relevant power to punish O must be. In short, I suggest that there are

many people in different parts of the world who share a collective interest in there

being a system of criminal rules prohibiting, inter alia, acts o f widespread or systematic

torture. This is hardly controversial. Furthermore, I claim that their interest is

sufficiently important to warrant conferring upon every state the power to punish

perpetrators of this crime against humanity extraterritorially. But let us go one step at a

time.

This interest is shared, in the first place, by many individuals in TS. If such a crime

is perpetrated on its territory, they would have an interest in the perpetrators being

punished for their offence, and by an extraterritorial authority explicidy authorized to

do so. That is, individuals in whose state international crimes are being perpetrated

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have a fundamental interest in the criminal rules that provide for these offences being

in force. But so would, I suggest, individuals in other states in which similar

international crimes are being perpetrated. The fact that O is punished, for her offence

in TS, by an authority expressly authorized by the international legal system would not

only ground the belief in that such a criminal rule is in force in TS. It would similarly be

able to ground the belief that this rule is in force also in TS2, where these crimes are

also being perpetrated. This explains the usual claim that whether or not Pinochet was

punished for widespread or systematic torture committed in Chile is not merely a

matter that affect the interests of the Chileans. The Chileans may have, admittedly,

many reasons for claiming priority to try and punish Pinochet. Yet, whether or not he

was punished affected the interests o f other people around the world. In particular, I

suggest it affected their interest in the existence o f this international legal rule being

expressed and communicated by assessing his compliance with it.

Finally, I submit that this argument also accounts for conferring the power to

punish O upon states in which individuals are not particularly uneasy about them

becoming victims of widespread or systematic torture such as, for example Switzerland.

Admittedly, the Swiss will generally not be too concerned about becoming victims of

these international crimes; but my argument nowhere requires such a demanding

threshold. First, as long as there are certain individuals in Switzerland, such as refugees,

who will benefit from there being a rule against widespread or systematic torture in

force, this would suffice to confer upon Switzerland UJ over these offences. Several

criminal prohibitions protect only a portion of any state’s population or protect people

differendy. It might be plausibly argued that the legal prohibition o f rape protects

women and men differendy. This does not necessarily mean that women’s interest in

there being a rule against rape in force does not suffice to confer upon S the power to

punish O.

But even if there are no refugees or members of any minority who will clearly

benefit from such a rule being in force, this would not be fatal to my argument. And

this is because, as argued above, Switzerland’s power to punish O does not need to rely

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solely on the interest of the Swiss. It can also be grounded on the interest o f individuals

in TS, TS2, TS3, etc. This joint interest, by itself, might be all things considered

sufficiendy important to warrant conferring upon every state (including Switzerland) a

power to punish O that is extraterritorial in scope. Admittedly, this position suggests

that PS’s power may be grounded exclusively on the interest o f people outside PS. Yet,

there is nothing in the account of rights I defend here that precludes assigning B a right

on the basis of an interest explicidy held by C.16 An example at the interpersonal level

would clarify this point. B would normally be at liberty to stop C when she is trying to

escape with D ’s purse. B’s liberty in this example is arguably based, exclusively, on the

interests of D. Moreover, D ’s interest warrants conferring not only B this liberty, but

arguably everyone who is in a position to stop C (namely, F, G, H, etc.). The same

could be argued about PS’s power to punish O.

It could be argued, of course, that this need not be the case in the international

society. In short, individuals in Chile might take issue with Spain prosecuting Pinochet.

They would probably feel even more strongly about this if it were Bolivia, or Argentina

doing so. There are two lines of reply to this objection. First, that this objection does

not really address the issue at stake in this chapter. That is, it does not really claim that

individuals in Chile and in several other states lack an interest in there being a rule

against widespread or systematic torture in force. It does not even argue that the

interest that Chileans might have in Pinochet not being punished would override the

former interest in that rule being in force. Rather, it points to the question of whether a

particular country should be put under a disability to punish Pinochet. This is an issue that

has to do with PS’s authority (or standing), not with the specific interests that justify

conferring upon it the power to punish O. In the following chapter I will argue that the

question of PS’s authority has little to do with the extraterritorial scope of PS’s power.

Moreover, if Argentina were to prosecute Pinochet for a crime committed on its

own territory against a Chilean national (such as the assassination of General Prats and

his wife in Buenos Aires in 1974), individuals in Chile would probably take issue with it

16 See section 3 o f the general Introduction to this thesis.

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too. And yet, the fact that individuals in TS take issue with PS punishing O is generally

not a sufficient reason to hold PS under a disability to punish O. As the example of the

murder o f General Prats shows, Argentina’s power to punish O rests on considerations

which are independent from the opinion of Chilean nationals. Similarly, I claim here

that the power to punish Pinochet is not grounded exclusively on the interest of

Chileans. As long as this suggestion is sound, I do not see why their taking issue with PS

punishing Pinochet would be of crucial normative relevance.

There is an obvious qualification to the general position advocated thus far. It

might be that under certain circumstances, as for instance in the case of an incumbent

head of state, or head of government, the interests of individuals in TS are sufficiendy

important to confer upon O a prima facie immunity against PS’s power to punish O. It

might well be, also, that their interest would outweigh the interest o f individuals in TS,

TS2, etc. in O being punished. I seriously doubt that. Yet this illustrates well how

strong the interest-based theoretical framework I advocate is. On the one hand, it can

accommodate the concern raised by biased states by referring to the conditions that PS

should satisfy in order to have the authority to punish O. And secondly, it shows

exacdy where the difficulty lies in this type of cases. Namely, it depends on carefully

examining the interest that explains PS’s power versus the interest that explains O ’s

immunity. Sorting out this question is beyond the scope of this thesis. However,

showing the way in which this could be done should dispel any anxiety that the initial

objection might still generate.

To conclude, the world lacks a centralized governmental institution that can

provide a system of criminal justice that is in force extraterritorially on TS, TS2, PS, etc.

In this context, I suggest that the collective interest of these individuals in a rule against

widespread or systematic torture being in force on the territory of TS, TS2, etc.

warrants conferring upon every state the power to punish O. This is required, at least, if

these criminal rules are to provide any meaningful sense of dignity and security to them.

In the absence o f a centralized mechanism of distribution of criminal competence for

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this kind o f offences, UJ provides us with the closest we can get to these rules having

any real sense of bindingness.17

2.3 Competing arguments for UJ

My claim here is not just that I can provide a convincing account of states’ power to

punish international crimes on universality grounds. I suggest that the argument

developed here fares much better as a normative explanation of UJ and

extraterritoriality in general than alternative ones available in the literature. Several of

these arguments hardly resist careful philosophical scrutiny. Among the arguments

most often relied upon are the claims that extraterritorial punishment is justified as a

means to enhance peace,18 to fight against impunity by closing the gap in law

enforcement19 thus eliminating safe heavens by giving perpetrators of atrocities no

place to hide.20 Some o f these arguments are clearly question begging. To say that the

justification for punishing O is to fight impunity is tautological. It is precisely why it is

important to fight impunity that this argument needs to explain. Retributivists have

been traditionally concerned with this problem. By contrast, other considerations in this

list point towards deterrence. Ultimately it is the fact that eliminating safe heavens

would (allegedly) provide individuals with greater incentives to refrain from committing

this kind of offence that would be doing the normative work. I will briefly address

these two kinds of justification below.

But first, let me consider the argument that purportedly explains PS’s power to

punish O by reference to the enhancement of peace. There are, in short, at least two

fundamental problems with this argument. The first is that it provides only a contingent

justification for PS’s power to punish O.21 In situations in which criminal trials will not

17 On this see section 4.3 below.18 See, e.g., Preamble of SC Resolution 827 by which the International Criminal Tribunal for the Former Yugoslavia was created.19 Princeton Principles, 24.20 Bruce Broomhall, Towards the Development o f an Effective System o f Universal Jurisdiction for Crimes under International Law', New England I m w Review 35 (2000-2001), 406; Kenneth Roth, 'The Case for Universal Jurisdiction', Foreign Affairs 80, no. 5 (2001), 153.21 On the problem with contingent justifications for legal punishment see Chapter 1 above.

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enhance peace, for example because peace has already been secured, advocates of this

justification would have to argue against carrying them out. Secondly, even if we expect

the criminal law to have a deterrent effect, it does not follow that it would deter the

continuation of ongoing hostilities per se. International criminal law essentially prohibits

certain forms of warfare, but it does not necessarily criminalize the use of military force

per se. Thus, even if its premise were right, this argument fails to lead to its purported

conclusion.

In an article entided ‘The “Under-Theorization” of Universal Jurisdiction’,

Anthony Sammons provides a more elaborate account of UJ. 22 He suggests that the

justification for UJ is not merely a question of explaining S’ power to punish O. Indeed,

“ [m]any commentators and jurists incorrecdy seek to divorce the assertion of universal

jurisdiction from the principles of state sovereignty.”23 He provides an account o f UJ

tailored specifically to address this difficulty. On his view, UJ is mainly an interference

with another state’s domestic jurisdiction which must, therefore, be explained by

reference to the principle of state sovereignty. Sammons sees sovereignty as largely

analogous to private property: states have a bundle of rights over their territory,

including the rights to political autonomy, non-interference and territorial integrity24

Among these rights, sovereignty includes the right to pass criminal laws, prosecute and

punish offenders.25

This analogy, he claims, is also useful to understand that sovereignty is not

unlimited, but rather presupposes a certain level of respect for neighbours and their

equivalent rights within their own territories. It is a feature of his account that

sovereignty can be transferred to other states or to the international community. This is

how, for example, the Allied powers exercised some form of sovereignty over German

territory after WW2, including the right to prosecute and punish certain criminal

22 Sammons, 'The "Under-Theorization" O f Universal Jurisdiction: Implications for Legitimacy on Trials o f War Criminals by National Courts'.23 ibid, 127.24 ibid, 117.25 ibid, 124.

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offences. Thus, his account of UJ relies on explaining how it is that TS’s sovereignty is

transferred, at least in part, to the international community.26

Sammons argues that the main reason why states have the right to make certain

criminal rules subject to universal jurisdiction has to do with the fact that TS has

become terra nullius.11 This was the case with pirates, who acted beyond the reach of any

single state’s jurisdiction. Alternatively, this may be the result of the breakdown of the

criminal law system or its lack of capacity to prosecute a particular type of crimes or

group of perpetrators. As an example he cites the case of Rwanda which, after the

events of 1994, appealed to the Security Council to create an international tribunal

because its government felt it did not have the capacity to deal with them itself.28 Thus,

he contends that any state that derogates from certain essential norms such as the

prohibition of genocide, torture, etc. transfers a portion of its sovereignty to the

international community as a whole.29

Sammons’ account is complex and points to a relevant gap in the literature on UJ. I

suspect that an important source of its appeal rests on the fact that it allegedly explains

why UJ should be regarded as a subsidiary mechanism for certain types of very serious

offences. Moreover, unlike other accounts Sammons explicitly addresses the challenges

raised by the principle of sovereignty. I wonder whether he can consistently maintain

this subsidiary character and whether his sovereignty-based explanation suffices to

justify PS holding a power to punish O that is universal in scope. But first, an analytic

point is in order. I find Sammons’ explanation of the transference of a portion of TS’s

sovereignty to the international community unconvincing. To start with, we need to

distinguish cases in which TS authorises PS to exercise its criminal jurisdiction on its

territory from those in which extraterritorial punishment is exercised against TS’s will.

In Chapter 2 above, I argued that the justification for TS’s power to punish O also

entails TS holding a normative power to authorize a specific extraterritorial body to

26 ibid, 125.27 ibid, 128.28 ibid, 131.29 ibid, 137.

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punish her.30 But this is hardly a justification for UJ. UJ, rather, entails PS punishing O

for acts committed in TS irrespective of the authorization of TS, and usually against its

will. Thus, the fact that TS becomes terra nullius can only explain why TS forfeits its

immunity against PS refraining from punishing O for an offence she perpetrated on TS,

but not yet why PS, itself holds a power to do so. This point is not just a matter of

analytic rigour. It has normative implications.

I suggest that the fact that TS became terra nullius does not suffice as a justification

for UJ to punish O. Let me explain. When X forfeits a right o f hers, she can forfeit her

right in rem, i.e. against the world at large, or in personam, namely, against certain

individuals or bodies.31 According to the general understanding about the rules that

apply on terra nullius, TS would forfeit her immunity only in personam. As discussed in

section 3 of Chapter 2 above, under the standard conception of terra nullius, it is not the

case that every state has the power to punish O. Only the state o f nationality o f the

offender or that o f the victim would be empowered to do so. Although I disagreed with

this position, this is immaterial for present purposes.32 The point is that even under the

standard account regarding the laws applicable on terra nullius, not all states

automatically earn a power to punish offences committed there on universality

grounds. They need to be able to point to an interest that justifies their holding the

power to do so in particular.33 In the final analysis, Sammons makes a mistake which is

the mirror image of the one he identifies in the literature. That is, he discusses universal

jurisdiction only with regard to the issue of sovereignty, failing to grasp that he needs,

crucially, an argument that accounts for specific states holding the power to punish O.

Finally, I submit that Sammons’ scheme commits him to more than he would

willingly admit. In short, his argument does not seem to be limited, necessarily, to the

most serious offences such as genocide, crimes against humanity, aggression, slavery,

30 This arguably explains why the Allies exercised jurisdiction in Germany after WW2 (at least over domestic offences). To wit, it was because Germany in its capitulation had explicidy authorized them to do so. A similar case could be made, to some extent, with the case o f Rwanda he cites.31 On this distinction see the general Introduction to this thesis.32 I suggested that PS does not have the power to punish O on terra nullius if it is not on grounds of protection.33 On this see also Hirst, Jurisdiction and the Am bit of the Criminal haw, 217.

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etc.34 The nature of these offences and the identity of their perpetrators would

function, in his account, as a sort of threshold below which intervention by way of

extraterritorial criminal jurisdiction would be unwarranted. Nevertheless, his argument

does not lead to this conclusion. The reason for this is that this is not what TS

becoming terra nullius would entail. It might well be that whenever systematic rape,

torture or even genocide are perpetrated on the territory of TS, this country becomes

something similar to an empty island, or Antarctica in terms of its government lacking

an immunity against extraterritorial states having criminal jurisdiction over it. Yet, when

a certain territory becomes terra nullius, it lacks not only an immunity against foreign

bodies punishing a genocide that occurred there, but also an immunity against PS

punishing domestic offences perpetrated there, such as robberies, assaults, etc.35 In sum,

the notion of terra nullius on which his argument rests, can explain neither PS’s power to

punish O nor can it limit UJ to international crimes.

I have suggested throughout this thesis that the extraterritorial scope of PS’s power

to punish O is dependent upon the reasons that justify PS holding that power in the

first place. Allow me to bypass here deterrence as a general justification for UJ. Most of

the difficulties I have with deterrence have been aired in previous chapters. Most

relevandy, I have argued: i) that it would advocate summary executions rather than

criminal trials, and ii) that it would entail the prosecuting state having universal criminal

jurisdiction for both international and domestic offences.36 This last objection also

holds for standard accounts of retributivism with the possible exception of D uffs

communitarian justification for legal punishment. To his general account I now turn.

When he put forward his theory of punishment, D uff was arguably concerned with

the problems created neither by international criminal law nor by extraterritoriality.

Only recendy has he addressed these issues in some detail.37 Thus, I will concentrate

first on his general argument for punishment and, subsequendy, I will examine his

34 Sammons, 'The "Under-Theohzation" O f Universal Jurisdiction: Implications for Legitimacy on Trials o f War Criminals by National Courts', 132.35 See Chapter 2, section 3 above.36 See Chapters 1 and 2 above, respectively.37 Duff, "Criminal Responsibility, Municipal and International".

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account specifically tailored to the issue at hand. In Chapter 2 above, I argued that

D uffs general argument faced some difficulties with regards to the power to punish

domestic offences committed abroad. I now want to claim that the main shortcoming

of his general justification for legal punishment is in the area of international crimes.

Duff sees punishment as a secular penance whose main purpose is to communicate

censure to moral agents (O). He is therefore concerned with being able to reach the

offender’s moral conscience. One of the conditions for this punishment to reach O ’s

moral conscience is that PS needs to have the moral standing to censure her for that

conduct. For this to obtain PS should, first, have the appropriate relationship to O, or

to her action in question. This implies that there is a political community on behalf of

which punishment is imposed. Secondly, PS must not have lost that standing as a result

o f some (wrongful) previous dealing with O. It is only the first condition that matters

for us here.38

As suggested in Chapter 2 above, the answer to this question depends crucially on

what constitutes for D uff a political community in the relevant sense. If he makes the

requirements too thin (i.e., mutual recognition and protection of basic human rights)

then he would have to admit that almost every state would have the moral standing to

censure O and as a result he would end up advocating UJ for both domestic and

international offences. By contrast, if he uses a thick notion of political community, he

seems committed to rejecting UJ altogether. No community other than that to which O

belongs would be able to communicate with O in the relevant sense.39 The question of

what suffices for a group of people to be a political community in D uff s terms is one

o f the most controversial aspects of his account.40 For us, what matters is that,

depending on what constitutes a political community, his initial approach seems

doomed to advocate either UJ for any type of offence, or preclude UJ completely.

38 For a fuller explanation o f D uffs position, see Chapter 2, section 6 above. This second condition will be examined in Chapter 5 below.39 This creates, I have suggested in Chapter 2.6, other issues concerning offences committed by foreigners on the territory o f TS.40 Most recendy, von Hirsch and Ashworth, Proportionate Sentencing: Exploring the Principles, Chapter 7.

His more recent approach to this issue may solve this initial inadequacy.41 As

explained in Chapter 2, Duff elaborates on the idea of moral standing by resorting to a

relational notion of criminal responsibility. He argues that “O is responsible for her

offence as a citizen to S”.42 This approach, he concedes, would be incompatible with UJ.

Thus, he needs to explain how it is that this reasoning does not apply to other offences

such as genocide, war crimes or crimes against humanity. Or, better, why it is that O

would be responsible for such offences simply as a moral agent and to the whole of humanity.

He leaves aside the issue of “genuinely international wrongs” and concentrates only on

cases in which the wrong is committed within a particular state and against its

members.43 For present purposes, I shall follow his line of argument although I am not

persuaded that the case of UJ for war crimes or aggression is as straightforward as he

presents it.

Duff contends that both on principled and pragmatic grounds TS, the political

community to which O belongs, has the power (standing) to bring O to account for an

international offence she perpetrated in TS.44 This, as it stands, is broadly non-

controversial. Rather, we want to see how it is that he extends this power (standing) to

PS. First, he claims that “if the wrong is serious and persistent enough, and if the

[territorial] state radically fails in its duty to prosecute and punish such wrongdoing, it

may become in principle legitimate for others ... to intervene, and may become

practicable for them to do so”.451 take it from D uffs argument that the seriousness of

41 A caveat is in order. D uff in his paper only considers the case o f an international tribunal, not o f individual states. His explanation for this is that individual states exercise UJ as a way o f ‘filling the gap’ left by the absence o f an effective international criminal court (Duff, "Criminal Responsibility, Municipal and International"). I will not take issue with this position. Most arguments for UJ usually explain the power to punish O on universality grounds by claiming that it belongs to the international community as a whole, and then explain why it is that states are entitled to act, individually, on behalf o f that community.42 See Chapter 2 above.43 Duff, "Criminal Responsibility, Municipal and International," 18.44 I have argued above that his explanation for the extension o f this ‘standing’ to the state on whose territory the offence was committed is unconvincing. See Chapter 2 above.45 Duff, "Criminal Responsibility, Municipal and International," 18. On this see also Altman and Wellman, 'A Defense o f International Criminal Law'; May, Crimes against Humanity.

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the offence and its persistence are both necessary and sufficient conditions for an

extraterritorial state to intervene legitimately.

This, however, hardly constitutes an explanation for PS’s power to punish O on

universality grounds. In effect, this argument seems to get its moral pull from the fact

that it is both legitimate and practicable for states to stop or prevent these wrongs. But, as

I have repeatedly argued throughout this thesis, the power to punish O does not follow

from the liberty to defend V. Indeed, if based on the liberty to protect individuals in

TS, this ‘right to intervene’ would be contingent on the serious wrongs still being

committed (persisting) at the time of the intervention. This means that there would be

no extraterritorial punishment for these wrongs when they have already ceased. This

seems artificial. Moreover, this explanation sits very uncomfortably with D uffs own

justification for the power to punish O, namely, providing the conditions for a secular

penance.

Ultimately, Duff needs to explain why it is every state’s business to punish O for,

say, an act of genocide she carried out on TS. He presents two possible answers to this

question. First, PS would act on behalf of the political community in TS.46 Although he

is not too clear about how convincing he himself finds this claim, this line o f argument

seems unpromising. In effect, he does not explain why it is that PS has the standing (in

his terms) to act on behalf of the political community in TS. And this is problematic for

his account. If an extraterritorial state could simply act on behalf of the political

community in TS, this would completely undermine the necessary relationship he so

carefully tries to build between O and TS, and on which TS’s own standing is based.

Thus, this answer can be readily rejected. His second answer relies on the following

proposition: PS should have “jurisdiction over (and only over) those crimes whose

perpetrators must answer not to this or that particular political community, but to

humanity itself’.47 Admittedly, this proposition makes his relational account of criminal

46 Duff, "Criminal Responsibility, Municipal and International," 20.47 ibid, 21.

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responsibility compatible with UJ for certain offences. However, it is worth examining

this argument more closely.

D uff rejects any suggestion that these offences harm or victimize humanity “as a

whole”.48 This position, he rightly contends, is too artificial. An individual living in

Mexico would not be harmed or victimized himself'm any meaningful way by a genocide

committed in Korea. By contrast, his account relies on the following analogy: in the

same way we say that crimes are public wrongs, i.e., that they are kinds o f wrongs that

properly concern the political community as a whole, certain offences such as crimes

against humanity are wrongs that properly concern the whole humanity as such 49 But this

analogy begs the fundamental questions. First, it assumes that the reasons why a single

homicide is the exclusive business of the political community to which O and V belong

are clear enough. Furthermore, it assumes that these reasons similarly explain (by

analogy) why an act o f genocide is not the exclusive business o f that political

community but, rather, the business of humanity as a whole.

I am not persuaded that D uff can explain the former issue convincingly. In

Chapter 2 I argued that D uffs citizenship-based explanation cannot account

convincingly for TS’s power to punish foreigners who perpetrate an offence on its

territory. Yet, the latter proposition seems even more mysterious. If we are to consider

an act of genocide the business o f humanity as a whole, a further explanation is

warranted. D uff claims that these wrongs are everyone’s business “simply in virtue of

our shared humanity with their victims (and with their perpetrators)”.50 Yet, if we

accept that we all belong to “that broadest of human communities”51, then I wonder

what is precisely the normative work that belonging to a community — whatever that

community may be — does in his explanation. Put differendy, even if we accept that we

share our human condition, the question subsists of how that makes it every state’s

business to punish O for an act of genocide but not for a single homicide, or rape

48 ibid, 21-22.49 ibid, 22; emphasis added.50 ibid, 22.51 ibid, 21.

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/

committed extraterritorially. This, Duff does not explain. And it is, I suspect, precisely

what he needs to explain.

To sum up, the problem ultimately rests with the fact that D uff treats the question

o f PS’s ‘standing’ as being separate from the question regarding the reason why

punishment is visited upon O.52 His relational notion o f criminal responsibility has no

evident connection with the question of what particular interest warrants giving PS the

power to punish O and, crucially, whose interest this is. I suggest this latter issue is

what does the justificatory work all along. Take an example of his I already cited above:

university X has itself the power to sanction one of its lecturers (L) for neglecting her

classes because the members o f X have an interest in the classes being up to the

required standard that is sufficientiy important to warrant conferring upon X

disciplinary powers over JL. By contrast, university Y lacks the power also to sanction L

because the interest that its own members have in lectures being up to a given standard

is not important enough to warrant Y the power to sanction L. This same reasoning

applies also to states and their criminal laws. Thus, I suggest these are the questions we

need to answer to provide a theory of UJ; contra Duff, whether the notion of

responsibility, criminal or otherwise, is necessarily relational does not seem to do any

normative work.53

3. The jurisdiction of the ICC

It is time to examine the ICC’s jurisdictional scope. In order to take up this task,

however, two caveats are in order. First, as I have argued in the general Introduction to

this thesis, my aim is to examine the moral justification for the rights of existing

institutions and their scope, not about devising or clarifying the rules that should

govern a different, ideal institutional arrangement. Secondly, the ICC is not a global

criminal court. Rather, it is a treaty body that was created as a result o f an agreement

52 Interestingly he explicitly admits that “it bears directly on [it]”, (ibid, 14).53 On S’s ‘moral standing’ see section 4 in Chapter 5 below.

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between a certain number of states.54 As the international law on treaties makes it clear,

treaties create rights and obligations only vis-a-vis their parties.

Under the Rome Statute, the ICC has jurisdiction over O if either the state on

whose territory the offence was committed or the state o f which the offender is a

national are a party to the Statute, or if either o f the two explicidy accepts its

jurisdiction in a particular case.55 Moreover, the ICC can have jurisdiction over an

offence irrespective of where it was committed or of the nationality of both O and V if

it is referred to the Prosecutor by the UN Security Council acting under Chapter VII of

the UN Charter.56 Finally, jurisdiction of the ICC over an offence is ‘complementary’ to

domestic criminal jurisdiction.57 This means that the ICC’s jurisdiction will be triggered

only if “the [s]tate which has jurisdiction over it ... is unwilling or unable genuinely to

carry out the investigation or prosecution”.58 As it stands, the jurisdiction of the ICC

may seem unduly restricted. In effect, its power to punish O has a narrower

extraterritorial scope than that of individual states.59

The leading strategy to explain the jurisdictional scope of the ICC relies on the idea

that “[jjurisdiction is given to the ICC by a delegation o f traditional Westphalian

jurisdiction by the member states”.60 According to this view, which I shall term the

‘delegation argument’, the ICC is not a state and therefore has no ‘interests’ o f its

54 Rome Statute of the International Criminal Court (hereinafter the Rome Statute or ICC Statute).55 Article 12 ICC Statute.56 Article 13 ICC Statute. Under the same provisions, the Security Council can also prevent the ICC from investigating or prosecuting an offence temporarily. Article 16 ICC Statute.57 Preamble and article 1 to the ICC Statute.58 For different scenarios see Article 17.1.(a), (b) and (c) o f the ICC Statute.59 Yet, some o f the offences included in the Rome Statute, arguably, do not warrant universal jurisdiction for individual states under international law. On this, Madeline Morris, 'High Crimes and Misconceptions: The ICC and Non-Party States', Law and Contemporary Problems 64, no. 1 (2001). For a conflicting view see Michael P. Scharf, 'The ICC's Jurisdiction over Nationals o f Non-Party States: A Critique o f the U.S. Position', Law and Contemporary Problems 64, no. 1 (2001), 79-80.60 Kontorovich, The Piracy Analogy: Modern Universal Jurisdiction's Hollow Foundation', 200. See also Diane F. Orentlicher, ‘The Future o f Universal Jurisdiction in the New Architecture o f Transnational Justice’ in Macedo, Universal Jurisdiction, 217; Diane F. Orentlicher, 'Politics by Other Means: The Law of the International Criminal Court', Cornell International Law Journal 32 (1999); Scharf, 'The ICC's Jurisdiction over Nationals o f Non-Party States: A Critique o f the U.S. Position'. Accepting this framework but arguing that the delegation argument cannot legally ground the provisions on jurisdiction contained in article 12 o f the Rome Statute, Morris, 'High Crimes and Misconceptions: The ICC and Non-Party States'.

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own.61 What justifies its power to punish O is the consent o f states which authorized it to

exercise jurisdiction over certain offences when committed on their territory or by one

o f their nationals. In this section I shall argue that this framework is inadequate to

explain both the jurisdiction the ICC actually has as a matter o f law, and the jurisdiction

it ought to have as a matter of normative argument.

But before examining this issue, I need to consider an objection famously put

forward by the U.S. government and defended by some prominent officials and

academics.62 They suggest that scope of the ICC’s power to punish O, as it stands, is

illegitimately broad. More precisely, they argue that the ICC lacks the power to punish

nationals o f non-party states even if their offence is committed on the territory of a

state party, or a state which consented to the jurisdiction of the court on an ad hoc basis.

This is mainly a legal claim. But the argument on which it is grounded is in part a

normative one. The legal argument has already been addressed in the relevant

literature.631 shall concentrate here on its normative force.

The claim is that the ICC’s jurisdiction over nationals of non-party states is

incompatible with the theory of delegation of powers. In short, states can delegate to an

international tribunal neither their universal nor their territorial power to punish O.

Madeleine Morris presents the most elaborate version of this argument. She first argues

that because there are significant differences between national courts and an

international tribunal, we cannot assume from the fact that UJ can be exercised by the

former, that it can automatically be delegated to the latter.64 Her problem with this

delegation is that the ICC Statute purports to bind non-party states.65 Some scholars

flady reject this claim. The ICC Statute, they suggest, does not impose any obligation

61 Moms, 'High Crimes and Misconceptions: The ICC and Non-Party States', 49.62 See ibid and David Scheffer, 'Opening Address at the Universal Jurisdiction Conference at the New England School of Law', New England Law Review 35, no. 2 (2001). For a political statement o f this position, see William K. Lietzau, 'International Criminal Law after Rome: Concerns from a U.S. Military Perspective', Law and Contemporary Problems 64, no. 1 (2001).63 Orentlicher, 'Politics by Other Means: The Law o f the International Criminal Court', and Scharf, 'The ICC's Jurisdiction over Nationals o f Non-Party States: A Critique o f the U.S. Position'.64 Morris, 'High Crimes and Misconceptions: The ICC and Non-Party States', 29 and ss.65 ibid, 14.

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upon non-party states; it only binds individuals.66 The problem with this rebuttal,

Morris suggests, is that the ICC would not simply assess the individual culpability of a

particular defendant; it quite often would have to adjudicate on the lawfulness of

official acts of states.67

This, in itself, does not suffice as an argument for her position. She needs to

explain why it is that states cannot delegate that power they hold to the ICC. To explain

this, Morris draws on principles related to the legal institution of assignments. In a

nutshell, her argument is that as a matter of principle PS can delegate to the ICC a right

it has against TS if and only if this does not prejudice TS’s position.68 And in fact, she

suggests that delegating the power to punish nationals of non-party state to an

international tribunal would prejudice the position of non-party states. This assertion is

based on three claims. First, the ICC, unlike an individual state, can only provide “a

diminished availability o f compromise outcomes in interstate disputes”. Secondly, its

verdicts would have a higher political impact on the state of which O is a national than

those reached by a national court. And finally, its decisions would have a much greater

role in shaping the law, and would provide for impediments to the diplomatic

protection of nationals.69 Therefore, she concludes, states lack the power to delegate to

the ICC their territorial or universal jurisdiction over non-party states’ nationals.70

Michael Scharf has responded to this argument by claiming that states simply lack

the right (an immunity) against the ICC (or other states) deciding on the lawfulness of

acts committed by their officials extraterritorially.71 He does not provide any

explanation for why this is so. But this proposition is on the right track. For TS to hold

an immunity against the ICC punishing one of its nationals, individuals in TS would

66 Orentlicher, 'Politics by Other Means: The Law o f the International Criminal Court', 490; Scharf, 'The ICC's Jurisdiction over Nationals o f Non-Party States: A Critique o f the U.S. Position', 75.67 Morris, 'High Crimes and Misconceptions: The ICC and Non-Party States', 14.68 ibid, 51.69 Morris, 'High Crimes and Misconceptions: The ICC and Non-Party States', 45.70 Analytically, the argument should be that non-party states have an immunity against states parties to the ICC delegating their power. The relevance of this analytical point will become clear in the next paragraphs.71 Scharf, 'The ICC's Jurisdiction over Nationals o f Non-Party States: A Critique of the U.S. Position', 75.

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have to have an interest sufficiently important to warrant putting the ICC under a

disability to do so. In this thesis I have argued that quite the opposite is true.

Individuals in TS would normally have a collective interest in a system of international

criminal rules being in force. But even if they lacked such an interest (because, arguendo,

it would not contribute to their sense of dignity and security), I have suggested that

individuals in other states (TS2, etc.) have a significant interest in these rules being in

force. For these rules to be binding also upon TS’s state officials, it is necessary that

extraterritorial authorities have the power to punish those who violate them. And this

certainly covers the ICC.

In other words, the reasons why Morris holds that TS’s position would be

prejudiced by the ICC having jurisdiction over acts committed by its nationals may well

be reasons for which individuals in TS, and crucially, in TS2, TS3, etc. would have an

interest in prioritizing the ICC exercising its criminal jurisdiction over individual states.

To wit, the ICC would not try to find a negotiated outcome; it generally decides on O ’s

culpability or lack thereof. It would not accept diplomatic protection of nationals and it

would probably have a bigger impact on S’s domestic politics and on the development

of international criminal law. These considerations seem to provide individuals with

stronger reasons to believe that international criminal laws are in force than the

imposition of legal punishment by PS.

Someone may argue that my answer begs the relevant question. Would not

individuals in non-state party S, which is involved in an air campaign against a terrorist

group in S2, have an interest in the actions of S being immune from the jurisdiction of

the ICC? For example, if they want their national security enhanced, would they not

want their government officials to act free from the threat of being prosecuted by the

ICC? The obvious response to this question is that the interest individuals in S may

have in their collective security is not sufficiendy important to confer on S the liberty to

perpetrate war crimes while doing so. In fairness, defenders of this immunity against

the ICC do not advocate that S should be able to do anything it considers that fits its

own interests in order to pursue their goals; rather, their contention is that

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extraterritorial authorities and in particular the ICC should not have the power to

decide whether the chosen course of action was lawful or not.72

The problem with this approach is that it considers these two as separate, unrelated

questions. Yet, they are nothing of the kind. If officials of state S are to be considered

bound in any meaningful sense by the rules of international criminal law, it is not

enough that S alone holds the power to prosecute and punish them. Rather, if these

rules are to be in force at all, some extraterritorial body would need to have jurisdiction

over them. As Morris suggests the ICC would be in a privileged position to claim this

power. Put differendy, one cannot consistendy argue at the same time that S’s

personnel should be bound by the rules of international criminal law and that S should

have an immunity against the ICC exercising jurisdiction over acts o f its nationals. It is

simply not true that S can validly claim an immunity against the ICC punishing its

nationals for an international offence perpetrated on the territory of a state party.

Therefore, it follows that states can validly delegate their territorial jurisdiction (and

their universal jurisdiction) to the ICC.

Having dealt with this objection, I will take issue with the whole ‘delegation’

framework. Admittedly, this approach would seem generally compatible with the

normative claims made so far in this thesis. In Chapter 2 I argued that the interest

individuals in TS have in there being a system of criminal laws in force in TS warrants

conferring upon TS the normative power to authorize an extraterritorial body to punish

O for an offence she committed there. This would include authorizing not only foreign

states, but also regional and international tribunals. Earlier in this chapter, I argued that

individual states hold a normative power to punish O for an international crime that is

universal in scope. As with their territorial jurisdiction, states would then hold the

normative power to authorise the ICC to exercise universal jurisdiction for international

offences on their behalf.

This delegation framework would successfully explain most aspects of the

jurisdictional scope the ICC has as a matter of law. States would be able to delegate

72 Madeline Morris, 'High Crimes and Misconceptions: The ICC and Non-Party States', 53.

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their territorial criminal jurisdiction to the ICC, and they would also be entided to

delegate their universal jurisdiction. Furthermore, because it is their powers they are

delegating, they have the power to authorize the ICC to exercise them under certain

conditions. This would explain the ICC having UJ only upon the condition of the UN

Security Council referring the case to the Prosecutor, and would also be able to account

for the principle of complementarity. There is, however, an exception to this general

compatibility. Defenders of the delegation theory would have difficulty explaining the

jurisdiction over nationals of states parties for offences committed on the territory of

non-party states (nationality principle). If my argument in Chapter 2 holds water, a

consistent account would have to admit that states lack the power to delegate the

power to punish a national of theirs for offences she committed outside their territory.

To this extent, the rule provided in article 12 (b) of the Rome Statute would be

unwarranted.

Nevertheless, the problems with this normative framework as an explanation for

the scope of the ICC’s power to punish O cut deeper. I suggest that it is based on an

unconvincing version of the domestic analogy. To wit, the delegation argument

identifies wrongly those whose interest ultimately explains the ICC’s power to punish

O. Take the power of the ICC to punish O for an international crime perpetrated on a

non-party state by a national of a non-party state. For the delegation argument to do

any justificatory work, the power held by the ICC would have to rely on the power held

individually by the state parties. Let me illustrate this. In Chapter 2 I argued that TS

could delegate to PS the power to punish O for an offence she perpetrated in TS. That

delegation was needed to empower PS because the reason for conferring upon TS the

power to punish O does not itself warrant conferring upon PS the power to do so.

Individuals in PS lack an interest in PS punishing O for an offence she committed in

TS, and the interest of individuals in TS in having a system of criminal rules in force

does not, per se, warrant conferring upon PS the power to do so. Delegation, then, is

crucial for PS holding the normative power to punish O in this scenario.

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However, this does not obtain in the case of the ICC. Rather, the collective interest

(held by individuals in different parts o f the world) that justifies each individual state

holding UJ also warrants conferring a power to punish O upon the ICC. Put differently,

the delegation argument seems to rely heavily on the claim that, unlike states, the ICC

has no interests of its own.73 Therefore, its criminal jurisdiction is dependent upon

states delegating their powers to it. As we saw, however, the power of a state to punish

an offence committed on its territory is grounded on a specific collective interest of

individuals in that state. It is not grounded on an interest of the state itself. States do not

have interests o f their own.74 We talk about the interests of the UK or of Sri Lanka only

as a shortcut to refer to the interests (usually of a collective nature) of individuals in the

UK and Sri Lanka respectively. It is ultimately individuals’ interests (taken singly or

collectively) that have moral worth. Thus, both the power o f individual states and the

power of the ICC to punish O must be explained by reference to the interests o f these

individuals. By resting on an unconvincing use of the domestic analogy, the delegation

argument simply obscures this important insight.

By contrast, in section 2.2 above I argued that individuals in TS1, TS2, PS1, etc.

have a collective interest in there being a legal system in force prohibiting genocide,

crimes against humanity, war crimes, etc. For this to obtain, I suggested, it is necessary

that states have UJ over these crimes. Thus, it is the collective interest of these

individuals that warrant conferring upon every individual state the power to punish O

irrespective of where she perpetrated her offence or the nationality of both O and V.

This same collective interest warrants conferring UJ upon the ICC.

This alternative explanation is less controversial than it may initially seem. For

example, despite being an advocate of the ‘delegation argument’, Scharf explicitly

recognizes that “the drafters [at the Rome Diplomatic Conference] did not view the

consent of the state ... as necessary ... to confer jurisdiction on the court. Rather, they

adopted the consent regime as a limit to the exercise of the court’s inherent jurisdiction

73 See text corresponding to footnote 61 above.74 On this, see section 4 o f the general Introduction to this thesis.

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as a politically expedient concession to the sovereignty of states in order to garner

broad support.”75 I do not mean to suggest that this concession was not politically

necessary to establish the ICC. Rather, my claim is that the delegation argument does

no normative work in the justification for the scope of the ICC’s power to punish O. But

not only this, if the jurisdiction of the ICC is grounded on the collective interest of

individuals worldwide in there being a system of international criminal laws in force,

then there are reasons to critici2e the scope of this jurisdiction for not being broad

enough. That is, if we take into consideration the interests o f individuals worldwide and

we admit that millions of individuals living in different parts of the globe have an

interest in there being a criminal law system that prohibits, inter alia, genocide, war

crimes and crimes against humanity in force, then it must follow that the ICC should

have the normative power to punish O whether or not the UN Security Council refers

the situation.

4. Objections to UJ

I have argued that both individual states and the ICC should have UJ over international

crimes. In this last section I shall tackle some objections raised against this position.

The literature on this issue is vast, making any treatment at best partial. I shall respond

here only to a handful of challenges. Before doing so, however, a caveat is in order.

Many of the objections raised against it suffer from one or more of the following flaws.

First, sometimes purely contingent objections are presented in the guise of general

arguments.76 Take the often flagged ltu quoque’ or ‘clean hands’ objection. Kissinger

complains that Spain — which holds one of the broadest stances on UJ — was itself

tainted by transgressions committed during its Civil War and under Franco’s regime

and has done very litde about it.77 Thus, how would it have the power to punish abroad

75 Scharf, 'The ICC's Jurisdiction over Nationals o f Non-Party States: A Critique of the U.S. Position', 77 citing Philippe Kirsch & John T. Holmes, 'The Rome Conference on an International Criminal Court: The Negotiating Process', American Journal of International Law 93, no. 2 (1999).76 Against contingent justifications for punishment see Chapter 2, above.77 Henry A. Kissinger, The Pitfalls o f Universal Jurisdiction', Foreign Affairs 80, no. 4 (2001), 91. This might be about to change with Baltasar Garzon’s new investigation on these crimes. See,

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what it has failed to punish at home? This might or might not be a strong argument.

However, it misses the point; for it does not undermine UJ per se, but rather it is only an

argument against Spain itself holding that right.78

Secondly, some arguments claim to undermine UJ while, in fact, they only advocate

certain limitations upon its exercise. The reason for this is that they concern the

conditions that any particular body should meet in order to hold the power to punish O

(i.e., the authority to do so), with the interest that accounts for a particular body

holding that power. Take for example the issue of trials in absentia. All that a complaint

against trials in absentia can do is suggest that the presence of the accused is a condition

that every trial should meet in order for PS to hold a normative power to punish O on

universality grounds. But showing that PS holding that power has certain normative

limits (stemming, inter alia, from individuals’ right to due process) does nothing to show

that PS lacks that normative power.79

Most significantly, perhaps, several arguments raised against UJ are ultimately

objections against any state punishing O — including TS. In other words, they fail to

address the core aspect of UJ, namely, its extraterritoriality.80 Take again the issue of

trials in absentia. Whether a judicial authority ought to hold the power to punish O in

absentia does not or not clearly depend on whether O committed the offence on its

territory or not. To sum up, then, whenever an objection is liable to one or more of

these flaws, it simply fails to undermine the case for UJ made here.

h t tp : / /w w . elpais.com/articulo/espana/Gar2on/investigara/represion/ franquista/abrira / fosa/Lorca/ elpepuesp/20081016elpepunac_6/Tes (last accessed, 10 January 2008).78 This challenge will be examined in more detailed in Chapter 5, section 5, below.79 This charge will be addressed in section 6 o f Chapter 5 below. Similarly, see the charges raised in George P. Fletcher, 'Against Universal Jurisdiction', Journal of International Criminal Justice 1 (2003); Madeline Morris, 'Universal Jurisdiction in a Divided World: Conference Remarks', New England haw Review 35, no. 2 (2001), 352-354 and Alfred P. Rubin, 'The International Criminal Court: Possibilities for Prosecutorial Abuse', Caw and Contemporary Problems 64 (2001), respectively. Most o f the concerns expressed therein, and their normative implications will be addressed in Chapter 5 below.80 Admittedly, UJ entails also a lack of nationality link between, both O and V, and PS. However, because I have argued that both the nationality o f O and V should have no relevance as to whether PS should have the power to punish O, I portrait here UJ under the light o f pure extraterritoriality.

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4.1 UJ criminalizes political decision-making

In a polemical paper, Henry Kissinger complains that UJ means submitting

international politics to criminal procedures. Heads of state and senior public officials,

he suggests, should not be equated with pirates, hijackers and other similar oudaws.81

Let us appraise Kissinger’s claim. I do not think his argument implies that there is

something fundamentally disanalogous between heads of states and hijackers that

warrants that only the latter should be subject to the criminal law. In effect, if a head of

state is uncontroversially liable for ordering the murder of his wife, why would he not

be liable for ordering a genocide? Rather, I believe this argument points to the

complicated debate regarding the relationship between criminal liability and politically

motivated behaviour. In effect, the distinction between crime and politics is a tough

one, and one that is beyond the scope of this thesis.82 Far from trying to untangle the

intricacies o f this issue here I shall point out, rather, that this objection has a logical

flaw.

Indeed, the issue it raises is whether a particular instance of conduct (e.g.,

systematic torture of alleged terrorists) should be criminalized or, by contrast,

considered merely a political decision. As pointed out in other parts o f this thesis, I

cannot address here issues of criminalization in any depth. My point here is that

questions about criminalization of particular conduct should not be conflated with the

question of who should have the power to punish O for them. Kissinger conflates these

two separate questions and reasons through a non-sequitur. From a premise that

ultimately objects to torture being criminalized simpliciter when ordered by certain state

officials, he concludes that an extraterritorial authority (PS) should lack the power to

punish torturers on grounds of UJ. However, if his premise is convincing it must follow

that neither TS nor the state that employs O should have the power to punish O for

these acts. I am not sure that that Kissinger is really committed to the view that, for

example, the US under Barack Obama would lack the power to punish acts o f torture

81 Kissinger, 'The Pitfalls o f Universal Jurisdiction', 87.82 For a brief discussion o f some o f the issues that arise from this discussion see Stanley Cohen, 'Crime and Politics: Spot the Difference', The British Journal of Sociology 47, no. 1 (1996), 1.

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committed by its own troops in Abu Graib. But even if he were, his is not an argument

against PS exercising universal jurisdiction over O.

4.2 UJ risks becoming a tool against political adversaries

Another common ground for concern stems from the possibility of states using

criminal trials as foreign policy tools to prosecute adversaries or advance their national

interests.83 In Kissinger’s words “[t]he Pinochet precedent, if literally applied, would

permit the two sides in the Arab-Israeli conflict, or those in any other passionate

international controversy, to project their battles into the various national courts by

pursuing adversaries with extradition requests.”84 This, some add, would be particularly

problematic due to the lack of judicial independence in many countries.85

This argument has significant normative pull but I suggest it is ultimately

unconvincing. First, this objection is liable to the flaw of contingency, i.e., it takes issue

with certain states (i.e., political adversaries) exercising extraterritorial jurisdiction over

O, not every state. Moreover, it is not always the case, and I am unpersuaded about

how plausible this is in international relations, that states have tried to take international

political conflicts to their own domestic criminal courts. Criminal trials are slow, cosdy,

burdensome and arguably unsatisfying in the context of heated political disputes.

Negotiations, reprisals, and ultimately war have proven far more popular. Thus, I

suggest the risk is overstated.

Secondly, this objection also fails to address extraterritorial punishment per se. In

short, it would undermine both TS and PS exercising their criminal jurisdiction against

a political adversary. That is, it would also undermine Syria’s power to punish offences

committed by Israeli soldiers in Syria. Ultimately this is because, again, this charge

affects not the interest on which the justification for punishing O rests, but the

conditions that any given body should allegedly satisfy in order to hold the power to do

83 Morris, 'Universal Jurisdiction in a Divided World: Conference Remarks', 354.84 Kissinger, 'The Pitfalls o f Universal Jurisdiction', 92.85 Morris, 'Universal Jurisdiction in a Divided World: Conference Remarks', 353.

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so (its authority). As I will argue in my next chapter, this issue is unrelated to the

extraterritorial scope of S’s power to punish O.

4.3 UJ is just an expensive taste for elites

Arguably, the most damaging objection to extraterritorial punishment on grounds of

universality is the supposedly negligible effect it has on the lives of the very individuals

whose interests seem to ground this power. In David Luban’s words, “the enterprise of

occasionally putting perpetrators on trial —even leaders like Milosevic and Kambanda—

seems more like a publicity stunt than a commitment to humanitarian legal values”.86

This objection implies that, as a matter of fact, it is unrealistic to believe that a system

of international criminal rules will ever provide individuals with any real benefit. No

such system can succeed unless states are willing to yield some of their most treasured

attributes. As Alfred Rubin puts it, most people argue that the U.S. are not willing to

have alleged misdeeds o f its military and civil leaders defined by people with no interest

in the turmoil an arraignment would cause in the American political system. But would

any state be willing to do so?87 This does not only apply to state officials; “when people

are willing to die for a cause, send their children to die for it, and pay for the effort in

supplies and other ways, the notion that international supervision will limit atrocities is

unrealistic in the absence of the full panoply of world government.”88

If this objection is viewed in terms of the capacity of extraterritorial punishment to

deter future offences then I have expressed my sympathy for this claim in Chapter 1

above.89 Yet, the putative strength of a system of international criminal laws as a

deterrent of atrocities is not a matter that should concern us, for deterrence plays

virtually no part in the justification I advocate. This objection does challenge the view I

have defended here, though. It claims that international criminal laws cannot contribute

86 Luban, 'A Theory of Crimes against Humanity', 130.87 Rubin, 'The International Criminal Court: Possibilities for Prosecutorial Abuse', 164.88 ibid, 157.89 In fact, despite the fact that there are no empirical studies to prove this claim the literature seems confident in that its deterrent effects are negligible. See, e.g., Sloane, 'The Expressive Capacity of International Punishment', 71-75; Drumbl, Atrocity, Punishment, and International Law, 169-173; and Tallgren, 'The Sensibility and Sense o f International Criminal Law', 569-579.

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to the dignity and security of individuals worldwide in any meaningful sense. This

would be very damaging for my position. In Chapter 2 I argued that because PS

holding a power to punish O for a robbery she committed on TS can contribute neither

to the sense of dignity and security of individuals in PS or TS, PS lacks that power.90

Similarly, if this objection is sound I must reject the claim that both individual states

and the ICC should have UJ.

To respond to this, I would suggest that conferring upon PS the power to punish

O extraterritorially is capable of contributing to the sense of dignity and security that

international criminal rules provide individuals worldwide and that, for this to obtain,

both individual states and the ICC must have UJ. This might seem unwarranted today.

But let me clarify exactly what the position I defend is. I have argued in this chapter

that if a system of international criminal law is in force, it would contribute to the sense

o f dignity and security o f millions of individuals worldwide, including those on the

territory of TS. The claim that not many people on earth currently feel any extra sense

o f dignity or security stemming from international criminal rules being in force does

not undermine my argument entirely.

First, we should not take this proposition at face value. There seems to be some

empirical evidence that in practice the fact that an extraterritorial authority claims

jurisdiction to punish O can have a non-negligible impact on the ground. The

likelihood of accountability, albeit extraterritorial, seems capable o f having some

effects. When Colombia threatened the guerrilla and the drug-trafficking cartels with

extradition to the US to face charges there, this generated a bloody wave of terrorist

attacks, kidnappings, etc., designed to make the Colombian Government step back. For

those belonging to such organizations it made a huge difference whether they would be

in prison in Colombia or abroad.91 But also it might make a difference for those being

targeted by these groups. There have been some indications that the opening o f an

investigation by the International Criminal Court has changed things on the ground

90 See Chapter 2 above, sections 3 and 4.91 As one may imagine, their privileges (which in some cases amounted direcdy to escaping from prison) would have been rather different.

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both vis-a-vis those responsible for international offences and the vulnerable, targeted

minorities in Sudan and DRC.92 Finally, there might be some clear exceptions to this

general objection such as the situation of prisoners o f war in certain armed conflicts.

Albeit circumstantially, this shows that the empirical assumption on which this

objection rests is far less certain than its advocates admit.

Moreover, it is not even clear that if this objection were empirically accurate today

it would lead to rejecting UJ. The fact that individuals do not have a sense o f being

right bearers and that the criminal law protects their rights might not be so much a

consequence of the impossibility of this system doing anything meaningful for them, but

rather a result of it not being in force yet. International criminal law is arguably still in its

infancy, and few people will deny that it has a long way to go before becoming

established as an institution in both international and domestic life.

The objector, however, may push the point further by suggesting that international

criminal law will never be able to provide the benefits that domestic criminal law

systems create for individuals. I will have to concede that much. PS would usually have

difficulties in investigating or obtaining custody over O. Moreover, TS will often refuse

to collaborate with these investigations by, among other things, not disclosing

information, refusing access to witnesses, facilities, and victims, not extraditing

defendants, etc. It would be poindess to reason on different assumptions. Nevertheless,

this does not mean that a system of international criminal law can achieve nothing.

Even if the level of convictions would be low, as is admittedly the case in every domestic

criminal law system, and even if it faces difficulties and limitations, many individuals

would benefit from a system of international criminal laws coming of age. Indeed, such

a system of criminal law would provide them with some sense o f being right bearers

and that these rights are protected by criminal laws. Moreover, this is a feeling of

security that many domestic systems o f criminal law will not be able to provide.

92 See, e.g., Suliman Baldo, The Impact of the ICC in the Sudan and DRC (http://www.peace-justice- conference.info/documents.asp 2007 [last accessed, 10 January 2008]) and the Report o f the International Center for Transitional Justice in id.

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Thus, my conclusion on this issue is rather thin. I suggest that we have good

reasons to recognize the ICC and individual states having the power to punish O on

universality grounds as this would contribute to the sense o f dignity and security of

many individuals in many different parts of the world. This is not in fact such a

controversial stance to take. In an otherwise rather pessimistic paper about the benefits

that international criminal laws can provide, Sloane suggests that “[o]ver time,

punishment by [extraterritorial] criminal tribunals can shape as well as express social

norms”.93 And he adds, “the international sentencing process can reinforce and

vindicate those norms even if it cannot, alone, realistically be expected to deter or fulfil

retributive aspirations held by each affected local constituency”.94 This arguably

suggests that the argument advocated here is perhaps the best suited for this task.

5. Conclusion

This chapter closes the section of this thesis on international criminal law. Ini chapters 3

and 4 I have presented an argument to the effect that both individual states and the

ICC should have, at the bar of justice, the power to punish O for an international crime

irrespective of where it was perpetrated, and o f the nationality o f either O or V.

Chapter 3 argues that an international crime is simply one whose prohibition cannot be

in force on the territory of TS unless at least some extraterritorial body has the power

to punish O. In Chapter 4 I have argued that the interest of individuals in TS, TS2,

TS3, PS, etc, i.e., o f every individual in a situation of vulnerability vis-a-vis this kind of

crimes, warrants conferring upon every state and the ICC UJ to punish O. Finally, I

have defended this proposition against the claims that UJ simply criminalizes political

decision-making, that it risks becoming a tool against political adversaries, and that it is

simply an expensive taste for elites o f no consequence to the individuals who should

benefit from it.

93 Sloane, 'The Expressive Capacity o f International Punishment', 85. He refers only to “international” tribunals, but I think it is more accurate to include domestic ones acting on universal jurisdiction too. Drumbl reluctandy seems to admit that this is a function that extraterritorial punishment can perform rather well, even in mass atrocity situations (Drumbl, Atrocity, Punishment, and International Law, 176).94 Sloane, The Expressive Capacity o f International Punishment', 85.

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5Legitimate Authority and Extraterritorial Punishment

1. Legitimate Authority and the Right to Punish

The question in this thesis so far has been when a particular body is justified in meting

out legal punishment extraterritorially to an offender. Chapters 2 and 4 explained,

respectively, how the interest-based justification for the power to punish O advocated

here accounts for different extraterritorial bodies (PS and the ICC) being justified in

punishing O for domestic and international offences. However, as I argued in the

general Introduction to this thesis, identifying an interest that is sufficiendy important

to confer upon S this normative power does not suffice as a complete explanation for

the allocation of such power. S would normally have to fulfil certain conditions such as,

quite plausibly, not decide on a defendant’s (D) culpability on the basis o f confessions

extracted by torture.1 In other words, it is not enough for S to have the power to

punish O, that someone’s interest would be served by the conferral o f that power; S

must also have the authority to do so. In the general Introduction I illustrated this point

by way of a simple example. A needs prescribed drug D to fight some illness of hers

and B knows about this illness and knows that drug D would be appropriate. I

suggested that although B would be justified in prescribing D to A, she would not have

the normative power to do so. This is not, or so I claim, because A lacks the relevant

interest in getting the drug or B lacks the relevant interest in selling it to her, but rather

because B lacks the authority to prescribe it. The same can be argued in respect of PS. In

order for it to claim the power to punish D, it must satisfy certain conditions. This

chapter provides a philosophical account of these conditions.

1 Although along the thesis I have been using O as an alleged offender (i.e., an offender found guilty by a body with the relevant authority), in this chapter I use the notion o f a defendant The reason for this is, in short, that it captures better the fact that D has not been convicted yet.

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Although this is obviously an important question for any theory of criminal justice,

it may seem of particular importance for a theory o f extraterritorial criminal law. This is

because defendants, victims, and third parties characteristically tend to question the

authority of the court deciding the case. In effect, the authority of the International

Military Tribunal at Nuremberg and Tokyo was objected to on the basis that it was

nothing more than victor’s justice and that the Allies had also committed war crimes

during the war (tu quoque). Similarly, in the case against Pinochet, Spain’s standing was

questioned on the grounds that it had failed to prosecute the crimes of the Franco era. I

will call this the issue of ‘clean hands’. Italy and France have often been criticized for

trying offenders in absentia. Certain trials, such as Saddam Hussein’s, bear the charge of

being show trials or ‘trials by ambush’. And, finally, sometimes offenders are brought

before the Court after being abducted abroad (e.g. Eichmann). I shall examine each of

these claims here and assess their normative force and implications.

This chapter is intended to do two things. First, it will complete my general theory

of extraterritorial punishment by explaining when a particular body (S, PS, the ICC or

one of their organs) satisfies the minimum requirements to hold, itself, the power to

punish D. I will argue that this question is ultimately about whether S can claim the

authority to do so. Moreover, in order to substantiate this claim I believe it is worth

referring to what is arguably one of the most elaborate philosophical accounts of

authority available in the literature: Raz’s service conception. In sections 2, 3 and 4 I

will provide a general account of the authority of criminal courts.

Secondly, this account o f authority will show that none of the challenges often

raised specifically against extraterritorial bodies punishing D has anything to do with

the extraterritoriality o f the prosecution. Rather, they rely on different considerations

which affect both territorial and extraterritorial bodies alike. This is crucial for my

purposes because it shows, against what it is commonly believed, that the issue of the

extraterritorial scope o f S’s power to punish is entirely separate from the specific

considerations on which S’s authority is based. As I have suggested in previous chapters,

the extraterritorial scope of S’s power to punish D rests on the reasons that justify S

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meting legal punishment to D, to wit, on the interest on the basis of which this power

is explained, and on whose interest it ultimately is. In sections 5 and 6 below, I will

examine some of the most relevant challenges against extraterritorial prosecutions. But

before going into any of this a caveat is in order.

We must not conflate the question of what conditions S should satisfy in order to

have, itself, the authority to punish D, with the justification for the need to confer upon

some authority the power to punish D. While the former question has to do with what

gives S authority over a particular issue, the latter justifies the need for having some

sort o f centralized authority to deal with it in the first place. These questions are

analytically independent from each other. Indeed, regardless o f whether we consider

that we need a centralized authority or that we should allow individuals to decide

themselves on whether D should be punished, we might still require that they both

satisfy certain conditions in order to exercise that prerogative legitimately.

Admittedly, few would argue that we would be better off if each individual, rather

than the state, held the power to punish D for an offence. Yet it is worth clarifying why

this is so. The obvious objection to vigilante jurisdiction is the risk of potential abuse.2

However, that risk would be significantly tamed by imposing strict conditions for the

exercise of that power. We may require that trials remain public, that provision for

defence counsel be adequate, that stringent rules o f evidence be adhered to, that

sentencing guidelines be provided, etc. These limitations are perfectly compatible with

conferring upon any interested party the power to punish D. Quite possibly vigilante

jurisdiction will still be resisted on the grounds that “it is unreasonable for Men to be

Judges in their own Cases”.3 Yet, this does not argue in favour o f having a centralized

authority but rather suggests that V should not be allowed to try D herself. Moreover,

2 See, e.g., Luban, ‘A Theory o f Crimes against Humanity’, 106, who in fact does conflate these two questions. See also Locke, Two Treatises of Government, Second Treatise, §13, 275 and J. Gardner, ‘Crime: in Proportion and in Perspective’ at Andrew Ashworth and Martin Wasik, Fundamentals of Sentencing Theory: Essays in Honour of Andrew von Hirsch (Oxford: Oxford University Press, 1998).3 Locke, Two Treatises of Government, § 13,275.

as Locke suggested, “if he that judges, judges amiss in his own, or any other Case, he is

answerable for it to the rest o f Mankind”, i.e., he is liable to punishment himself.4

By contrast, I suggest that the main reason why we should have a centralized

authority is the need for coordination and cost-reduction. I cannot offer here a full

defence o f this claim. Rather, I shall simply suggest that it would be too onerous on

individuals to have to carry themselves the costs of investigating, trying, and executing

the sentence.5 This position will play an important role in the explanation o f some of

the issues I will address below, so it is worth keeping this background claim in mind.

2. The service conception of authority and the power to punish

“A. command is when a man saith do this or do not do this je t without expecting any other reason than the mil of him that said it.>>6

Joseph Raz’s influential service conception o f authority may help us explain and justify

what conditions any given body should meet in order to hold legitimate authority to

decide whether D should be punished. It is beyond the scope of this thesis to provide

an adequate defence o f this well-known position.7 However, I suggest that Raz’s highly

influential conception is clearly the best suited to account for the legitimate authority of

courts in the context of adjudication of criminal cases, both territorial and

extraterritorial. First, it readily distinguishes between the reasons that underlie the basis

of Acs authority and those which account for the scope of its power. While the whole

o f this thesis has been concerned with the latter issue, this chapter deals only with the

former. Secondly, and as I will argue below, it links A’s authority to it having an

epistemic advantage; thereby, it captures the fundamental insight that we normally

4 ibid, § 13, 276.5 It must be noted that this argument is independent of my particular justification for the right to punish and, thus, it would be compatible with other justifications, such as deterrence, retributivism, etc.6 Hobbes, Leviathan, ch. 25.7 For a good introduction to the issue of authority and a good example o f the relevance o f Raz’s version of the service conception in current debates see S.J. Shapiro, ‘Authority’ in Scott Shapiro and Jules L. Coleman, The Oxford Handbook of Jurisprudence and Philosophy of Taw (Oxford: Oxford University Press, 2002).

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accept the authority of courts because they are in a much better position than any of us

to decide a particular case, and this is due to their better knowledge o f the facts and the

applicable law. This is under most accounts a central aspect of the criminal process.

Finally, the argument provided in this chapter does not need to rely on the service

conception as an argument to explain all instances of authority, political or otherwise.

By narrowing its application to the authority of courts I simply bypass one o f the main

sources of resistance with which the service conception has met, i.e., its lack o f interest

in democratic procedures.8

The issue o f authority presents us with both a normative and a theoretical

question.9 The normative question is, ultimately, on what grounds can we justify

subjecting one’s judgment to that of another person, in our case by allowing her to

decide whether D should be punished (and how much). The theoretical one is about

the implications of recognriing A. as an authority on a given matter, i.e., how the

existence of an authoritative decision affects the reasoning or decision-making of

others.10 The service conception rests on three central theses, the first two o f which

provide an answer to the normative or moral question, and the third, to the theoretical

one. The Normal Justification Thesis (hereinafter NJT) argues that the normal reason

why a person ought to subject his will to that o f another person is that he “is likely

better to [conform] with reasons which apply to him (other than the alleged

authoritative directives) if he accepts the directives of the alleged authority as

authoritatively binding and tries to follow them, rather than by trying to follow reasons

which apply to him direcdy.”11 This normative claim has a limit built into it. Thus, the

Dependence Thesis states that in order for directives to be authoritative, they “should

be based on reasons which already independendy apply to the subjects of the directives

8 See, e.g., Thomas Chtistiano, The Authority o f Democracy', The Journal of Political Philosophy 12, no. 3 (2004) and Shapiro, ‘Authority’, 431-439. Ultimately I assume that the other considerations on which authority is often said to rest, e.g., consent, identification, etc., are not suitable to the issue at stake here.9 Joseph Raz, 'The Problem o f Authority', Minnesota Taw Review 90 (2006).10 Joseph Raz, 'Authority and Justification', Philosophy and Public Affairs 14, no. 1 (1985), 3.11 Raz, The Morality of Freedom, 53; Raz, 'The Problem of Authority', 1014.

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and are relevant to their action in the circumstances covered by the directive”.12 Finally,

the Pre-emption Thesis (hereinafter PT) provides an answer to the theoretical question

identified above; it maintains that “the fact that an authority requires performance of an

action is a reason for its performance which is not to be added to all other relevant

reasons when assessing what to do, but should exclude and take the place of some of

them”.13 As I shall explain below, the answers to the moral and the theoretical

questions are deeply interconnected.

But let us start from the beginning. The service conception rests on a particular

understanding of practical reason.14 It suggests that in any given circumstances

individuals ought to act on reasons that apply objectively to them. Regardless of

whether I am driving, playing chess, or adjudicating in a criminal case the reasons I may

have for not speeding, avoid loosing my rook, or convicting D only if she is proven

guilty beyond reasonable doubt apply to me independendy of my will, or my perception

o f these reasons. With this in mind, it is only natural that the normal reason why a

person ought to subject his will to that of another person is that he is likely better to

conform with reasons which apply to him if he accepts the directives issued by that

authority than if he tries to follow these reasons direcdy (NJT). Thus, when playing

chess one would be better off listening to Kasparov’s advice than trying to figure out

the right move by oneself. And this is arguably why we recogni2e Kasparov as an

authority in chess. Accordingly, the service conception suggests that the normal

function of legitimate authority is to mediate between people and right reasons that

12 Raz, The Morality of Freedom, 47 and Ethics in the Public Domain, 214. This is not the only limitation that applies to the service conception. Authorities are also limited by the kind of acts they can or cannot regulate (Raz, 'Authority and Justification', 14). Moreover, in his latest restatement o f the service conception, Raz places a significant emphasis in what he calls the Independence Condition, i.e., that “the matters regarding which the [NJT] is met are such that with respect to them it is better to conform to reason than to decide for oneself, unaided by authority” (Raz, The Problem o f Authority', 1014). I work on the assumption that empowering an authority to decide whether D should be punished or not (and if she is, how much) poses “no threat to the authenticity o f one’s life, or to one’s ability to lead a self-reliant and self-fulfilling life” (Raz, 'The Problem o f Authority', 1016) and that, as a result, it satisfies the Independence Condition.13 Raz, The Morality of Freedom, 46.14 Again, I cannot defend this approach here. For critical remarks see Heidi M. Hurd, Moral Combat (Cambridge: Cambridge University Press, 1999).

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apply objectively (and independently of the authoritative directives) to them, and

enhance their conformity with these reasons. Authority is ultimately grounded on

epistemic advantage.15 This dissolves one o f the traditional concerns with accepting an

authority; authorities are not an arbitrary denial of one’s capacity for rational action, but

rather a device through which one can achieve more effectively one’s capacity for

rational action.16 In Raz’s words, “the primary value o f our general ability to act by our

own judgment derives from the concern to conform to reasons, and that concern can

be met in a variety of ways.”17

It has been often objected, however, that the NJT provides only a prudential

reason for accepting someone’s authority, and does not yet explain why we are bound

to do so. The standard example goes: even if as patients we would comply better with

reasons that apply to us by following the doctor’s advice than by relying on our own

judgment, this does not entail per se that we are under a duty to follow her advice (or

that the doctor has authority over us).18 This proposition, however, is only partially

correct. For while it is true that doctors lack authority to oblige patients to follow

certain medical treatment, they do have authority to prescribe them certain medications.

Admittedly, the NJT cannot explain this difference of treatment. In both situations we

would comply better with the reasons that objectively apply to us by following the

doctor’s advice than by following reason directly. But why should we rely on the NJT

to explain this difference? I suggest that it is a mistake to suppose that the service

conception relies on it to explain the bindingness o f an authority’s decisions. On the

contrary, Raz has argued that we are under a duty to accept an authoritative directive

“where a substantial good is at stake, a good that we have moral reasons to secure for

15 Raz, Ethics in the Public Domain, 214.16 Raz, 'The Problem of Authority', 1018.17 ibid, 1017.18 Kenneth Einar Himma, 'Just 'Cause You're Smarter Than Me Doesn't Give You a Right to Tell Me What to Do: Legitimate Authority and the Normal Justification Thesis', Oxford Journal of Legal Studies 27, no. 1 (2007), 124.

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ourselves and for others but that can in the circumstances be best secured by yielding

to a coordinating authority.”19

It seems, then, that the objection misunderstands the normative work that the NJT

does within the service conception. The NJT explains only why we recognize, doctors

as the relevant authority to prescribe certain drugs, or engineers as authorities regarding

whether we can build certain buildings, or certain courts o f law as authorities

empowered to adjudicate on matters of criminal liability. The bindingness of their

decisions, by contrast, depends on other considerations, which are contained in Raz’s

answer but which it pays to explicate further. In short, the service conception relies on

two further positive arguments to explain the bindingness of an authority’s decision: first,

that there are things we have an interest in, an interest which is important enough to

warrant the protection of a right; and secondly, that the best way to serve this interest is

to empower an authority. It is only when these two conditions and the NJT are satisfied

that we have a moral case for considering the decisions of A binding.

Before moving on to the theoretical question identified at the outset, that is, what

the implications of recognizing A as an authority on a given matter are, two further

points are in order. First, under the service conception, for a certain body to hold

legitimate authority it must have some de facto authority. Admittedly, “in most cases the

normal justification cannot be established unless the putative authority enjoys some

measure o f recognition and exercises power over its subjects.”20 The main reason for

this is that if A ’s authority relies on the fact that it is capable o f solving certain

coordination problems and of providing a particular good, it must have some degree of

recognition by its peers and obedience from those subject to it. A powerless authority

simply cannot secure the relevant good at stake, be that a system of criminal laws, the

reasonable regulation of certain pharmaceutical products, or whatever. Moreover, this

helps to explain why states are natural candidates to claim the authority to punish D

and it provides a sensible evaluative threshold for extraterritorial authorities, such as

19 Raz, 'The Problem o f Authority', 1016. See, similarly, Raz, The Morality of Freedom, 100.20 Raz, 'Authority and Justification', 21; Raz, The Morality of Freedom, 56.

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governments in exile or international tribunals, and for domestic non-state institutions

such as tribal authorities, belligerent movements, etc.21 In the remainder of this chapter

I shall assume that the relevant body satisfies that requirement.

Secondly, A ’s authority is limited by the kind of reasons on which she may or may

not rely in making a decision. To repeat: directives must be based on reasons which

already independendy apply to the subjects of the directives and are relevant to their

action in the circumstances covered by the directive in order to be binding

(Dependence Thesis). This is a moral thesis on how authorities must use their powers.

It follows from it that in order for a decision reached by a given state S (or one of its

organs) on whether D should be punished or not to be authoritative, it must be based

on the reasons that apply to individuals whose interest explains conferring upon this

particular body the power to punish D. In simple terms, I have argued that individuals

in S have an interest in punishing those who violate S’s criminal rules.22 As a result, this

requirement rules out decisions reached primarily for other reasons, such as political

expedience, economic interest o f a certain kind, vindictiveness, hate, etc.23 This explains

why a verdict reached through bribing or threatening the jurors can claim no

authoritative force even if it is accurate.

As suggested above, the answer to the theoretical question identified at the outset,

namely, what are the implications of saying that S has legitimate authority to try D, rests

with the Pre-emption Thesis (PT). That is, “the fact that an authority requires

performance of an action is a reason for its performance which is not to be added to all

other relevant reasons when assessing what to do, but should exclude and take the

place of some o f them”.24 Thus, Raz argues that authoritative decisions work as

21 I am happy to accept that, in certain circumstances, a body different from the state would be able to hold the power to punish D at least if, e.g., it is authorized by the state, like the Gacaca in Rwanda, or if the body acts de facto as the state. However, I submit that we should accept its authority to punish D only as long as A satisfies the relevant conditions outlined below. Gacaca proceedings seem unpromising in this sense.22 This does not mean they are, as a matter o f fact, guilty. For a detailed explanation o f this proposition see Chapter 1 above.23 See, e.g., Duff, Ansmringfor Crime, 186 and cases cited in fn 143 and 144.24 Raz, The Morality of Freedom, 46 This is arguably one o f the most controversial aspects o f Raz’s service conception. For a review on some of the criticisms, see Shapiro, ‘Authority’, 411-413.

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second-order reasons that pre-empt the subject from relying on the first-order,

background reasons that apply to her independendy. The reason for excluding other

background reasons is that an authority cannot succeed in improving our conformity

with reason and solving coordination problems if it does not pre-empt our background

reasons, i.e., if individuals have to rely on their own judgment o f the merits.25 I cannot

offer here a proper defence of the PT nor even of Raz’s notion of exclusionary

reasons 26 Rather, I shall only concentrate on its explanatory potential for the account

of extraterritorial criminal justice defended here.

Briefly put, the PT explains the difference between saying that S is justified in

punishing D (as per Chapters 3 to 5) and claiming that S has the authority to do so. The

former proposition means that someone has an interest which is sufficiendy important

to put D under a liability to having punishment inflicted upon her; the latter means that

S’s decision on this matter should be treated as binding by others 27 This entails, first,

that individuals in S must abide by the court’s decision. That is, for example, they are

not supposed to go to the local Mob asking for justice after the state sentenced the

defendants too lenientiy.28 And most relevandy for our purposes, it also follows that if

S satisfies the requirements of the service conception, other states should consider that

decision as authoritative, that is, they would lack a valid reason to reject it. A contrario,

this also entails that if a state fails to satisfy these conditions its decision cannot claim

authoritative force.

We may be inclined at this point to distinguish between the authoritativeness of

convictions and acquittals. Indeed, although a guilty verdict means that D was found

guilty beyond reasonable doubt, acquittals do not establish innocence but rather that

the guilty threshold was not reached. One could then suggest that acquittals should not

25 ibid, 47-48; Raz, 'The Problem of Authority', 1019.26 On this see Raz, Practical Reason and Norms.27 As I explained above, the former proposition is one of the conditions that must be satisfied in order to claim that S has legitimate authority to punish D.28 Prudential reasons might also indicate likewise, as one may hear as a chilling reply: “Some day, and that day may never come, I will call upon you to do a service for me. Until that day accept this justice as a gift on my daughter's wedding day.” (Mario Puzo, The Godfather (New York: New American Library,2002), 33).

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then carry the same authority as convictions, and therefore that they need not be

considered binding, particularly by other states. Accordingly, the fact that D was

acquitted in S should not entail that she cannot be tried again (and convicted) in S2. But

this, I suggest, conflates two different things. The reason why we might consider S an

authority (i.e., that she satisfies the NJT) is not what explains its decision pre-empting

other authorities from deciding the case again. As suggested above, the PT is not

grounded on S making a more accurate decision than S2, but rather on the need for

coordination and cost-reduction. It would be deeply problematic for the purposes of

the criminal law system to have conflicting decisions as to whether D is guilty. In

particular, the fact that S’s courts have acquitted her would render S2’s conviction

suspicious, at least if it was not grounded on new evidence. This would undermine the

whole purpose o f punishing D, for it will not convey a clear message that the rule she

allegedly violated is in force. I cannot examine here whether states should have the

power to try D again on new evidence (for this purposes it is immaterial whether she is

tried in a court in the same state or a different one). The majority o f states seem to have

rules against this kind of proceedings called the safeguard against double jeopardy or ne

bis in idem.29 To conclude, then, I submit that D ’s acquittal does carry as much authority

as her conviction (in the restricted sense o f the PT), even if it arguably has an entirely

different meaning.

3. The service conception and the legitimate authority of courts

It is now time to see whether the service conception can convincingly account for the

institution at hand, i.e., criminal courts. As argued in Chapter 1 ,1 submit that having a

criminal law system in force is a public good we have reasons to secure for ourselves

and for others. That is, an interest in this system being in force sufficiently weighty to

ground a normative power to punish D. I also suggested that the best way to comply

with these background reasons is to empower an authority to investigate and try

29 An exception is the UK, which allows under quite strict conditions a new prosecution (see Criminal Justice Act 2003 ss. 75-81).

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criminal offences. This is mainly because of its greater coordination and cost reduction

(i.e., its efficiency). This authority would normally be a territorial or extraterritorial one

depending on whether the relevant offence is municipal or international.30 The bulk of

this chapter is therefore concerned with identifying when such institutions (normally

some kind of domestic or international court) satisfy the NJT, that is, when individuals

are likely better to conform with reasons which (independently) apply to them by

accepting its directives rather than by trying to follow these reasons directly.

Following Ashworth and Redmayne, a plausible answer to this question is that A.

satisfies the NJT when it seeks “accurately to determine whether or not a person has

committed a particular criminal offence and does so fairly.”31 In other words, the normal

reason why individuals should recognize the authority of a given Court to decide a

particular criminal case has to do with its greater knowledge o f the facts o f the case and

the relevant law, and its careful consideration of the conflicting viewpoints on the

matter. This response certainly has much intuitive appeal. However, there are at least

three issues that need further elaboration.

First, although the accuracy requirement captures the epistemic advantage that

courts normally offer, it raises the question as to why accuracy actually matters.

According to the NJT an authority’s epistemic advantage must be connected to the

reasons which independently apply to us and which it helps us conform better to.

Ashworth and Redmayne’s answer to this question is therefore consistent with the

rationale for legal punishment they endorse, to wit, retribution. If A ’s power to punish

is based on the fact that D deserves to be punished, it is only natural that the criminal

procedure is intended to determine, as accurately as possible, whether this is the case. I

have criticized retributivism in previous chapters for being incompatible with the

30 To remind the reader, Chapter 2 argues that individuals in S have an interest that warrants conferring upon S the normative power to punish offences committed on its territory or against its sovereignty, security or important governmental functions even if committed abroad. Chapters 3 and 4 argue that both the ICC and PS (an extraterritorial state) hold the normative power to punish international offences regardless o f where they were perpetrated, and o f the nationality o f both the offender (O) and the victim.31 Andrew Ashworth and Mike Redmayne, The Criminal Process (Oxford; New York: Oxford University Press, 2005), 22.

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interest theory of rights, and for leading to unacceptable positions when faced with the

issue of extraterritoriality.32 Yet, if I want to endorse accuracy as an element of the NJT,

I would need to explain why it would be required also by the justification for legal

punishment advocated here.

The basic proposition I have defended throughout this thesis is that ^4’s power to

punish D is based on the interest of individuals in there being a rule against murder,

robbery, systematic torture, etc. in force. For that criminal rule to be in force, those

who violate it must be punished; they must be punished by an authority expressly

authorized by the relevant legal system; and they must be punished because they violated

this rule. Only when all these conditions are fulfilled would punishing D send the right

message to individuals that the rule is in force.33 Accordingly, we need to make sure as

far as possible to convict the right person. Punishing innocent people qua innocent will

not do for the simple reason that it would ultimately undermine the credibility o f the

criminal law system and, with it, the sense of dignity and security that it brings to

individuals.34 This explains why accuracy is also required by the justification of legal

punishment I advocate.

Secondly, we need to clarify what it means to try someone fairly and explain why

this would also be required by the NJT. The former question is perhaps simpler to

answer than the latter. Fairness in this context is normally connected with respect for

certain rights. It is beyond the scope o f this thesis to provide a complete account of the

rights that a fair criminal process must respect. My argument is about being able to

account for the standard cases of fair or unfair trials; it is not meant to discern where

exactly to draw the line between them. A good starting point, in any event, is to look at

the different incidents that embody the right to a fair trial as provided for in the

relevant International Human Rights instruments. Article 14 of the International

Covenant on Civil and Political Rights establishes that “everyone shall be entitled to a

32 See Chapters 1 and 2 above, respectively.33 See Chapter 1 above.34 I do admit, however, that a given decision might be authoritative even if in a specific case D is wrongly acquitted or wrongly convicted. On this, see section 3.1.4 in Chapter 1 above and below.

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fair and public hearing by a competent, independent and impartial tribunal established

by law”; “shall have the right to be presumed innocent until proved guilty”; and shall be

entided to several minimum guarantees, such as, “to be informed prompdy and in detail

in a language which he understands of the nature and cause of the charge against him”;

“to have adequate time and facilities for the preparation of his defence and to

communicate with counsel of his own choosing”; “to be tried without undue delay”;

“to be tried in his presence”, “to have legal assistance assigned to him”; “to examine, or

have examined, the witnesses against him and to obtain the attendance and examination

of witnesses on his behalf’; “to have the free assistance o f an interpreter”; and “not to

be compelled to testify against himself or to confess guilt”.35 There are certainly other

rights that the criminal process should respect, which are not normally covered by the

right to a fair trial as such. Among them, one could mention the right to privacy, to

personal liberty, to freedom from torture, etc. In sum, I suggest that fairness in this

context has to do with respect for some basic moral rights that individuals have in the

context o f a criminal process broadly defined.36

Far more difficult is to explain why fairness is required by the NJT, i.e., why

accuracy does not suffice. Is not the NJT based on the notion of epistemic advantage

and is not the epistemic advantage linked to whether we have sufficient evidence that D

is guilty o f wrongdoing? Ashworth and Redmayne suggest that accuracy and fairness

are twin, concomitant aims. They even resist the idea that individual rights work as

mere side-constraints in the pursuit o f truth. For them the criminal process “is not just

a diagnostic procedure, o f which the sole purpose is to establish as accurately as

possible ... what happened”; they insist that respect for rights be seen as an objective

35 See roughly similar provisions in article 8 o f the American Convention on Human Rights, article 6 o f the European Convention on Human Rights. See also complementary rights and provisions in the UN Convention on the Rights o f the Child and the Charter o f Fundamental Rights approved by the European Union in 2000.36 Admittedly, some o f the particulars o f these rights would be jurisdictionally specific (e.g., the right to have legal advise when questioned in a police station). Yet, ultimately my argument rests on a more basic catalogue o f rights (e.g., the right to an adequate defence), whose different forms of institutionalization are immaterial for present purposes.

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to be attained while pursuing that end.37 However, this proposition fails to explain why a

violation of the right to fair trial would undermine v 4 ’s authority to punish D, and it

seems to take for granted that these two aims will not conflict.

There are two main positions in the literature regarding this specific issue. On the

one hand, the separation thesis suggests that “each part of the criminal justice process

should be considered independently”, that is, that if a wrong was committed during the

investigation, the police officers who carried it out should themselves be punished, but

this should have no bearing on the situation o f D.38 And on the other hand, the

integrity thesis entails that a breach of, for instance, someone’s right not to be tortured

during the criminal process would undermine VVs authority to punish D.39 Ashworth

and Redmayne take sides with the integrity thesis and so do I.40 However, the difficulty

lies in providing a convincing account for this position. A possible reason to endorse

the integrity thesis is that fairness is a condition for accuracy. Accordingly, it has been

argued that things such as coerced confessions are generally unreliable.41 Indeed, I

suggest that this is the reason why most breaches o f the rules o f fair process undermine

vVs authority. However, why should we not admit such a confession when it led to a

very specific piece of incriminatory evidence that could not have been made up and

which confirms D ’s culpability? Lack of reliability, thus, cannot take us far enough.

Ashworth and Redmayne advocate a stringent version of the integrity thesis which

they call protective or remedial. Ultimately, they argue that the only way to give

significant force to a person’s right not to be tortured is to exclude the evidence

obtained in violation of this right, and that it is much more important to uphold this

37 Ashworth and Redmayne, The Criminal Process, 24 and 45 respectively, emphasis added.38 As described by D uff et al., The Trial on Trial. Vol. 3, 226.39 See, generally, ibid, Chapter 8 and A. Ashworth ‘Exploring the Integrity Principle in Evidence and Procedure’ in Peter Mir field and Roger N ov Smith, Essays for Colin Tapper (London: LexisNexis UK,2003).40 A note o f caution is in order here. This does not mean that under certain circumstances the state officials should not also be punished. It only means that their wrong is not entirely unrelated to S’s authority to punish D.41 Interestingly, some ‘coerced’ interrogation techniques used at Guantanamo Bay were allegedly used by the Chinese during the Korean War to obtain confessions from American prisoners, most o f them false. See, S. Shane, ‘China Inspired Interrogations at Guantanamo’, New York Times, July 2 2008.

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right than to convict a guilty defendant in the immediate case.42 However, their position

rests on slippery grounds. First, its premise is far from uncontroversial, since there are

other ways o f upholding D ’s right which do not involve excluding illegally obtained but

otherwise accurate pieces of evidence. Most notably, and as the separation thesis

advocate would argue, S could punish those who violated that right and compensate D

for the harm she suffered. Ashworth and Redmayne could still suggest that “the ideal

remedy for breach of a right is normally (at least) restoration of the victim to the

position he would have been in had the right not been violated”.43 However, this would

still fail to explain the exclusion of evidence when it is the right of a third party that has

been violated, or when D ’s rights were violated by a third party or state.44 Secondly,

their position would face a significant challenge particularly in cases of trials for

international crimes and when excluding this evidence would lead to D ’s acquittal.

Unless one is dealing with extreme situations such as torture it might well not be

apparent why symbolically upholding someone’s right to a fair trial would be more

important than punishing D in instances such as the indictment of key political or

military figures responsible for mass atrocities in ongoing conflicts 45

By contrast, I want to suggest that the reason why fairness matters is ultimately

connected to the NJT in a more fundamental way. The NJT rests on the reasons that

objectively apply to us, and those are for our purposes the reasons that justify

punishing D. This thesis argues that S’s power to punish D is explained by the interest

o f individuals in S in there being a system of criminal rules in force. For these rules to

be in force, D has to be punished by an authority expressly a u th o re d by that legal

system, and because she violated these rules. That is, if the infliction o f punishment is to

convey the message that the violated criminal rule is in force, it is vital that individuals

42 Ashworth and Redmayne, The Criminal Process, 330-331.43 As put by D uff et al., The Trial on Trial. Vol. 3, 230, 235. My emphasis.44 This is why D uff et al seek to complement this account, which they call integrity as integration, with the principle o f integrity as moral standing. In section 4 below I will discuss in some detail whether the notion o f moral standing should play a part in a defensible conception o f authority as applied to criminal courts.45 This might well apply also in cases o f serial killers such as Harold Shipman, serial rapists, etc. See Adrian A. Zuckerman, 'Illegally-Obtained Evidence - Discretion as a Guardian o f Legitimacy', Current Legal Problems 40 (1987), 57.

in S see it as credibly meted out for that reason. Yet, if D is punished after her right to a

fair trial is violated, this would raise doubts as to whether the reason that she is being

punished is that she violated one of these rules. And this would be true, most likely,

even if there was strong evidence that indicated that D is guilty. Fairness, I submit, is a

necessary condition for credibility.

By credibility I do not mean here simple reliability as to whether D, as a matter of

fact, committed the offence. Rather, my submission is that it is crucial that the court is

credibly seen as convicting or acquitting D for the right reasons. Put differendy, the

trial is a means of communication with the public at large (including D and V).46 Public

confidence in S’s courts is therefore a necessary condition for the existence of a system

of binding criminal laws. This confidence is not exclusively a product o f the factual

accuracy or reliability of the verdict.47 Trials that are legitimately perceived as biased are

problematic even if they convict the guilty or acquit the innocent. This explains why

publicity and impartiality are widely endorsed conditions for any court’s authority even

when they are not necessarily instrumental in reaching more accurate decisions. A

secret trial is suspicious and therefore its verdict is unacceptable for the public even if it

happens to be accurate. Similarly, the House of Lords’ decision in Pinochet I was

quashed not because of it being incorrect, not even because it was biased. As Lord

Browne Wilkinson put it, “Senator Pinochet does not allege that Lord Hoffmann was

in fact biased. The contention is that there was a real danger or reasonable

apprehension or suspicion that Lord Hoffmann might have been biased, that is to say,

it is alleged that there is an appearance of bias not actual bias.” This was considered

sufficient to undermine the authoritativeness of the decision.

To sum up, I argue that S satisfies the NJT as an authority to punish D if and only

if it both seeks to reach an accurate and reliable verdict and it does so fairly. It is

461.H. Dennis, 'Reconstructing the Law of Criminal Evidence', Current Legal Problems 42 (1989), 35.47 D uff et al, The Trial on Trial. Vol. 3, 88. The Canadian Constitution provides: “Where ... a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that ... the admission o f it in the proceedings would bring the administration of justice into disrepute” (cited in Zuckerman, 'Illegally-Obtained Evidence - Discretion as a Guardian o f Legitimacy', 60).

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therefore not true that according to a generally instrumental conception of the criminal

process “the unreliability of the means by which [the decision] was arrived at, or the

fortuitousness of its truth, gives us grounds to criticise those who arrived at it, but do

not undermine its instrumental value”.48 Under the version of the service conception

defended here it is also true that the justice of the outcome is not wholly independent

of the justice of the procedures.

However, the service conception might be liable to the opposite charge. Namely, it

may have to recognize the binding character o f a credible wrong conviction or a

mistaken acquittal.49 The Dependence Thesis does not require that authoritative

decisions correctly reflect the balance of reasons on which they depend. This proposition

is a necessary implication of the conception of authority advocated here, and quite a

salient one. Because the justification of legitimate authority relies on its capacity to sort

out coordination problems, there is no point in having authorities unless their

determinations are binding even if mistaken. This might seem hard to swallow. Yet the

difficulty it causes should not be overstated.

First, clear mistakes would disqualify the authoritativeness o f S’s decision.50 This

means that S2 would not be bound by S’s decision to punish D if it has clear and

reliable information that D is innocent of the offence. Thus, under these circumstances

S2 would be entitled not to extradite her to S. By the same token individuals in S itself

and external observers would be able validly to object to that decision, and even, in

some circumstances, to refuse to comply with it. Secondly, we can devise rules to help

us minimize certain types of mistakes. For instance, states tend (and should) prefer to

let a guilty person go free than punish an innocent one, and this explains why they

require proof beyond reasonable doubt for conviction, and not merely on the balance

o f probabilities, given that in principle the latter standard would secure a greater degree

o f accuracy. Finally, accepting the authoritativeness of a mistaken decision is far less

controversial than one would initially think. When a court of law finds D guilty after a

48 D uff et al., The Trial on Trial. Vol. 3, 88.49 Raz, 'Authority and Justification', 15.50 Raz, The Morality of Freedom, 62.

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fair process and on the basis of accurate and reliable information, we generally accept

its decision as binding. And righdy so; we would rather have this occur than having

everyone trying to make up their mind whether to comply with this decision.

It is worth pausing here for a second. There is a particular kind o f mistake that is

accorded a different treatment. Raz suggests that the only mistakes that make an

otherwise authoritative decision void are mistakes over jurisdiction. Yet, he does not

give any reason why this should be so.51 I submit that the fact that mistakes over

jurisdiction undermine s¥ s authority to punish D has to do neither with it failing to

meet the NJT nor the DT. Rather, the problem in such cases would be that A has no

reason to punish D which is sufficiently important to be protected by a right. As I

explained in Chapter 3, the reason why a state PS lacks jurisdiction to punish D for a

robbery she committed in TS (when it is not an offence against its sovereignty, national

security, etc.) is that individuals in PS lack an interest which is important enough to

merit the protection of a right. And this is, as explained above, a necessary element of

the power to punish D. Accordingly, states which mistakenly assert jurisdiction over

offences committed extraterritorially cannot validly effect a change in D ’s moral rights,

let alone do so bindingly.

4. Authority as ‘moral standing*

There is a competing view that sees in S’s moral standing the main (though perhaps not

the only) condition grounding legitimate authority to punish D. This position relies on

a conceptual point, i.e., that a “complete account o f the legitimacy o f any authority

must include an explanation of how the authority acquires the moral standing to hold

others accountable, as well as an explanation of how it imposes genuine obligations.”52

Crucially, A ’s moral standing to hold someone (D) accountable for a breach of its rules

is explained by the relationship between A and D. This is a plausible position to hold in

several contexts. For instance, the objection goes, moral philosophers are not entided

51 ibid.52 Scott Hershovitz, 'Accountability and Political Authority', 2008, 5 (manuscript cited with permission from the author).

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to discipline any child they happen to see committing a misdeed on the street,

regardless of their satisfying the NJT; that power is generally grounded in the parent-

child relationship. Competence does not warrant authority.53

In this light, the service conception would be unsatisfactory as an explanation of

legitimate authority precisely because it is unable to provide a plausible account o f how

S acquires the moral standing to hold D accountable. Indeed, Raz argues that “remedies

for breaches of the law [such as damages for acts of defamation] ... can be morally

justified even if applied to those who are not subject to the authority o f the government

and its laws.” The “importance of the law in such matters is in creating a centre of

power which makes it possible to enforce moral duties.”54 Thus, this objection claims,

the service conception and the predominantly instrumental justification here advocated

only explain why the state is competent to hold the tortfeasor to account, but it cannot

explain why it has the standing to do so.

The damage this criticism does to the service conception is hardly as significant as

its proponents suggest. Its initial appeal comes from the fact that it misrepresents the

service conception and the normative work that the NJT does within it. The charge is

that the NJT cannot explain why we are bound to obey a particular authority; in

Hershovitz words, “[t]he normal justification thesis appears to tell us whether someone

would make a good authority, not whether someone possesses it.”55 Hershovitz himself

admits that satisfying the NJT is not enough to hold legitimate authority over someone

under the service conception. However, he fails to grasp what explains S holding

legitimate authority under it. He argues that what accounts for S possessing authority

over D is that it has de facto authority.56 His more plausible charge against the service

conception is then that the fact that S has de facto authority over D and that it satisfies

the NJT does not entail that D is accountable to S. In effect, the fact that D is arrested

in Chile and that the courts in Chile satisfy the NJT does not automatically entail that

53 ibid 13.54 ibid.55 ibid 18.56 ibid 18-19.

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Chile has the normative power to punish her for theft. Chile would not have that

power, for example, if D perpetrated this offence in Iran.

But this criticism is wholly misplaced. S satisfying the NJT and having de facto

authority are simply necessary conditions for S to have authority over D on a given

matter; they are not what explains the scope of its justified power. Rather, what

explains this is the fact that individuals in S have an interest in a given individual in

particular (D) being punished, sufficiendy important to warrant the protection o f a

right. As Raz puts it, a central aspect of the service conception is that it separates

between the issues of the authority of the state and the scope of its justified power.57 As

I have argued in previous chapters, no particular relationship between S and D is

needed in order for individuals in S to have an interest in D being punished. The moral

standing theorist needs some sort of relationship between S and D because she fails to

see that what explains S being justified in punishing D is also a necessary condition for

S possessing the authority to do so. Namely, that individuals in S have an interest in D

being punished which is sufficiendy important to warrant the protection of a right and

reasons to empower an authority to do this job.

Antony Duff et al take the moral standing line o f argument further in a direction

relevant for our enquiry. They provide a normative account of the criminal trial that

“takes as its starting point the ordinary social practice whereby one person calls another

to answer in the light of evidence of serious wrongdoing”.58 They illustrate their view

by way of the following example:

I think you have been spreading gossip about me at work. I call you to answer. I

outline the reasons that I think this, and if they are good reasons, it seems that

there is a legitimate demand that you answer This seems right even if you are

in fact innocent of spreading gossip about me.59

57 Raz, The Morality of Freedom, 104.58 D uff et al., The Trial on Trial. Vol. 3, 223.59 ibid, 209.

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In order to call someone to answer and eventually hold her accountable for what she

did, they argue, one needs to have the appropriate moral standing, i.e., the right to

assess the moral nature of their conduct.60 What explains S’s moral standing in their

view is the notion of citizenship. Citizenship, they suggest, involves a network of

responsibilities, obligations and rights that structure relationships between citizens and

between citizens and the polity.61 As a result o f these relationships, defendants have the

responsibility to answer to the charge based on the fact that they are citizens of S.62 The

criminal trial should then be “normatively understood as a process in and through

which citizens are summoned to answer to their fellow citizens for their alleged public

wrongs.”63

However, this is too quick. As Mike Redmayne has suggested, their example

involves acquaintances, and the moral obligations between citizens may well be

different. For instance, if someone on the street falsely accuses me of scratching her

car, it is far from clear that as a matter of justice I am under a duty to answer to her, or

that she has any right to call me to account.64 The crucial point is that no matter

whether one takes D uff or Redmayne’s side, it certainly does not seem to make any

difference whether the person calling me to answer is in fact a co-national, a tourist, or

someone calling on the phone from the other side of the globe who has never set a

foot on S.

The more interesting proposition is that we must appeal to the fact that D is a

citizen of S to explain why it is S and not some other state, which might be similarly

well-suited to the task (or even better suited), that has the standing to punish D.65 This

statement shows precisely where my disagreement with this position lies. Indeed,

making S’s authority over D dependent on whether she is a citizen o f S creates far more

60 ibid, 155-156.61 ibid, 140.62 ibid.63 ibid, 165. Moreover, this is also consistent with D uffs own justification for legal punishment in that for punishment to reach D ’s moral conscience it is necessary that A has the appropriate moral standing to censure her for her wrong. On a broader analysis o f this theory see Chapters 2 and 3 above.64 ibid.65 This claim is also made by Hershovitz, 'Accountability and Political Authority', 21.

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problems than it actually solves. First, this position sits very uncomfortably with the

core intuition that foreign visitors are bound by S’s criminal laws while on its territory.

Though Duff et al explicidy state that S’s right to call into account applies to them, they

fail to give any reason as to why this would be the case.66 Moreover, and as explained in

Chapter 2 above, their position would not be able to explain some standard cases of

criminal jurisdiction. For instance, it would fail to explain why Scotland had the power

to punish anyone (i.e., anyone who is not a Scottish national) for the Lockerbie

incident, or why Uruguay would have the power to punish offences committed by

foreigners in France against its sovereignty, security or important governmental

functions. After all, there seems to be no significant relationship between D and these

states. Finally, by requiring this kind of relationship between S and D, they would have

trouble explaining why states have extraterritorial jurisdiction to try international

offences committed abroad on grounds o f universality unless, o f course, the relevant

relationship is rendered so thin that it would be hard to see what normative work it is

actually doing.67

To sum up, then, my claim is not that S should lack a certain moral standing in

order legitimately to claim the authority to punish. Rather, my position is that this

moral standing does not rely on any special relationship between D and S, and in

particular, not on the relationship of citizenship. This completes my general account of

authority. In the following sections, I will test it against some common arguments often

(though not exclusively) raised against the authority of extraterritorial courts. My task is

to show that even when successful, these charges are not directed against the

extraterritoriality of the court.

5. Show trials, ‘Clean Hands’, and the problem of Victor’s justice

Extraterritorial prosecutions have often been subject, legitimately or not, to the charge

of being show trials. This charge was explicitly raised by Hess in the Nuremberg Trial,

66 D uff et al., The Trial on Trial. Vol. 3 ,135-136.67 On this, see my criticism to D uffs position in chapters 2.6 and 4.2.3 above.

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by Milosevic before the ICTY, by Saddam Hussein before the Iraqi High Tribunal, and

can be inferred in the statements by Justice Rudedge of the US Supreme Court on the

trial o f General Yamashita, and Justice Pal at Tokyo.68 There is certainly no agreement

in the literature on what makes any particular criminal proceeding a ‘show trial’.69 But

some instances hardly need elaboration. Meir Code recounts that in the Prague

proceedings, Regulation of 25 January 1950 stated “The court must inform the

Prosecutor in advance of the judgement it is about to hand down and get his opinion

whether the judgement is correct... the Prosecutor’s opinion is binding on the

Court”.70 “ [D]ress rehearsals were conducted prior to these trials and these rehearsals

were taped so that if a defendant deviated from the script, the microphone was

switched off and the tape would begin playing the defendant’s pre-recorded

responses”.71 There is littie doubt that this type of judicial proceedings is illegitimate

and that this undermines S’s authority to punish D. The more interesting question is

why exactly this is so. This section provides an answer to this question and will show

that in order to decide whether it is the case that S’s has the authority to punish D it is

irrelevant where the offence was committed.

Saddam Hussein faced trial before the Iraqi High Tribunal (IHT) for a number of

offences related to killings perpetrated in the town of Dujail in 1982. He was sentenced

to death and hanged on December 30, 2006. During the proceedings, he robustly

questioned the authority o f the IHT: “I do not respond to this so-called court... what

is built on illegitimacy is illegitimate”72; and he specifically raised the show trial charge:

“this is all theatre by Bush”.73 If he was right in that the legitimacy o f the Court was

tainted, as I think he was, where does the normative force o f his claim lie? The central

problem with the IHT, and the Dujail Trial in particular, is not necessarily that the

verdict was inaccurate, but rather that it failed to provide the defendants with a fair

68 Simpson, Law, War and Crime, 108.69 For a recent attempt, see Jeremy Peterson, 'Unpacking Show Trials: Situating the Trial o f Saddan Hussein1, Harvard International Law Journal 48, no. 1 (2007).70 Cited in Simpson, Law, War and Crime, 130.71 ibid.72 ibid, 105.73 S. Tisdall, "A Chance for Justcice, but Will It Be Seized?," The Guardian, 19 October 2005.

trial. Among its main reported shortcomings are severe political interference, breaches

in fair trial standards, and serious evidentiary and analytical gaps.74 In effect, it is

reported that the Higher National DeBa-athification Commission repeatedly intervened

in the Tribunal’s appointments and removals and functioned as a “sword over [its]

work”.75 Moreover, the defence counsel had limited access to important evidence and

the IHT denied defendants the full opportunity to contest evidence presented against

them. There was a failure to gather and disclose exculpatory evidence which, in turn,

impaired the opportunity to confront and cross-examine witnesses. Moreover, due to

the fact that the trial was held amidst intense conflict, it was impossible for the defence

to conduct its own investigations, particularly in al-Dujail village.76 This is hardly meant

as an exhaustive list, but it certainly suffices to show where lies the normative force of

the ‘show trial’ charge.

A couple o f points are therefore in order. First, these examples both show the

explanatory power o f the service conception of authority, and reinforce my initial claim

that the NJT must include fairness in criminal trials. According to the NJT, the IHT’s

authority must rely on it improving the conformity to reasons which independendy

apply to the relevant individuals. The reason which justifies the IHT having the power

to punish D is that individuals in Iraq (and possibly elsewhere) have an interest in a

criminal rule against mass killings being in force. For this type of criminal rule to be in

force, I have argued, D must be punished for having violated it. Now, the fact that

Saddam was subjected to an unfair trial can hardly ground the perception that he was

punished for violating these rules. Fairness as I suggested is crucial to credibility. But what

is more important, this holds even if most people believed that Saddam was in any

event guilty as charged. That is, the lack of fairness harms A’s authority to try D in

much the same way as lack of reliable evidence.

74 Miranda Sissons; and Ari S. Bassin, Was the Dujail Trial Fair?1 Journal of International Criminal Justice 5 (2007).75 ibid, 277.76 ibid.

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One may of course object that show trials are capable of delivering public order.

After all, Stalin used them in 1937-8 with considerable success to bring support to his

‘kulak operation’, which consisted in nothing other than mass killings (“smashing the

enemies of the people”).77 However, this would be completely to misunderstand what

is the interest that justifies having the power to punish D, and to turn it into a pure

consequentialist argument based on conformity with any kind of rule. To be clear, the

Stalinist type of public order is not based on the belief that certain criminal rules are in

force and, what is more important, on these rules contributing to the sense of dignity

and security of individuals living under them. Rather, this type of public order is

generally grounded on a ‘Who’s next?’-type of concern.78 In Findlay’s words “exposing

the harsher and more arbitrary operations o f the criminal sanction to wide public

scrutiny may not appear as a re-establishing of justice, but rather as a reactivation of

power.”79

The second thing to note is that the issue o f extraterritoriality did not have any

significant bearing on the legitimacy of the IHT’s authority to punish Saddam. The

character of the IHT as territorial, extraterritorial or hybrid institution is a complex

philosophical, legal and political issue in its own right. On its Website, one reads that

“[t]he IHT is purely a national tribunal and this is beyond discussion.” However, its

creation was authorised by the Coalition Provisional Authority,80 its statute was

reportedly drafted by the U.S., and its personnel and Judges were selected by the US-

appointed Iraqi Governing Council.81 However, reports from people on the ground

77 Michael Ellman, 'The Soviet 1937-1938 Provincial Show Trials Revisited1, Europe-Asia Studies 55, no. 8 (2003).78 Mark Findlay, 'Show Trials in China: After Tiananmen Square', Journal of Law and Society 16, no. 3 (1989), 356.79 ibid, 354. See also, D. Brown and D. Neal, ‘Show Trials: The media and the Gang o f Twelve’, in Mark Findlay and Peter Duff, The Jury under Attack (London: Butterworths, 1988).80 Order 48, “Delegation of Authority Regarding an Iraqi Special Tribunal”, issued on 10 December 2003.81 Moreover, the US contributed some $128 million to its funding, a sum which dwarfs the Tribunal’s own budget, and facilitated extensive security arrangements for the Tribunal and associated personnel. Most IHT functions, such as analytical, logistical and investigative support, relied heavily on the Regime Crimes Liaison Office (RCLO) which is based at the US embassy. Bassin, Was the Dujail Trial Fair?'.

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seem to emphasize how keen the Iraqis were in running the show their way. Charles

Garraway recently commented that the defiance of due process standards that

characterized the Dujail trial contravened the explicit advice (pressure) o f the occupying

powers and was probably a symbolic form of claiming sovereignty over the

proceedings.82 In any event, my contention is precisely that the illegitimacy of Saddam’s

trial had nothing to do with it being connected with an extraterritorial authority, but

rather stemmed direcdy from the lack of fairness o f the procedure and impartiality of

the court. It may well be that the only way for a court to satisfy the requirements set

out by the service conception of authority was, perhaps, if he was tried extraterritorially

by, e.g., Sweden, or the ICC, or a special International Tribunal as some advocated at

the time.83

It may be objected that the fact that the new Iraqi government relied so heavily on

U.S. military support would have undermined the legitimacy of the trial anyway. But

this is not to argue on the basis of the show trials charge. If anything, this claim gets its

moral traction from the charge of Victor’s justice. This charge is at least as popular as

the ‘show trials’ one. Underlying it, however, is a simple question that proves difficult

to answer: how does the fact that S won the war disqualify it from punishing D? Rather,

it seems to be the fact that S participated in the conflict that might undermine its

authority to punish enemy combatants. The charge of Victor’s justice seems only to

acknowledge, uninterestingly, that the losing side hardly ever gets to try its enemies.84

The only way of making sense of this broader claim is, I think, that sTs authority

would be undermined by the fact that it would be deciding its own case. It might be

argued in this type of case that state S’s courts lack impartiality and, as a result,

legitimate authority to try D. This, however, would be too stringent a requirement to

See, more generally, Michael P. Scharf, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal (Durham, NC: Carolina Academic Press, 2006).82 Kevin Heller and Chades Garraway (Public Lecture, “A Poisoned Chalice: The Substantive and Procedural Defects o f the Iraqi High Tribunal”, 13 November 2007, LSE).83 See International Center for Transitional Justice, "Creation and First Trial o f the Supreme Iraqi Criminal Tribunal," (October 2005).84 Hersch Lauterpacht, 'The Law o f Nations and the Punishment o f War Crimes', British Year Book of International Law 21 (1944), 68.

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sustain. First, it would lead, a contrario, to the implausible proposition that the states

involved in an armed conflict would also lack authority to try their own combatants for

war crimes because of the risk o f prosecutions ending up in “partial” acquittals.

Moreover, this line of argument would also make very little sense in a domestic setting.

This would mean, for instance, that the Spanish courts would lack the authority to try

foreigners for the Atocha bombings. This is hardly a limitation most people would

accept. Ultimately, I suspect that this charge once again stands on a mistaken analogy

between states and individuals. Most rules guarding the impartiality of courts normally

make reference to the impartiality of specific judges, or jurors, but not to that of the

court or political system itself. Moreover, rules on this issue are normally more

stringent than this argument presupposes. It is the fact that judge A is the sister o f

victim V, not merely a co-national, that would undermine her authority to try D. In

short, then, provided that S complies with the conditions o f the NJT and the DT set

out above, the fact that state S participated in a given conflict is not a clear reason as to

why it would lack legitimate authority to try its own soldiers, as well as enemy ones.

This leaves us with the charge of tu quoque or, as I prefer to call it, the issue of

‘clean hands’. This kind of argument was raised, for instance, by Jacques Verges, who is

best known perhaps for defending Klaus Barbie in 1988, when addressing the ICJ in

the case brought by DRC against France for certain (extraterritorial) criminal

proceedings. On this occasion he argued that France had no standing to try the DRC’s

Minister of the Interior based on the nature of French colonial rule, the failure of the

French authorities to indict President Chirac for alleged corruption, and the racial

motivations underlying the French judicial system.85

A first version of the ‘clean hands’ objection suggests that, for example, Spain did

not have the standing to try Pinochet, because it had been unable or unwilling to

prosecute Spaniards for crimes against humanity committed in Spain during the Franco

era. This allegedly shows some sort of moral hypocrisy or at least double standards.

85 Simpson, Lan>, War and Crime, 106. See also, Certain Criminal Proceedings in Prance (Republic of the Congo v France).

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This charge seems to imply —incorrectly in my view— that trials for crimes against

humanity must start at home. Under the service conception of authority there seems to

be no significant problem with allowing Spain to try Pinochet, as long as he is tried by

competent judges, the investigation was thorough, and his procedural rights were

respected. Accordingly, this version of the clean hands objection does not seem to

conflict with my argument for authority. In fact, the charge of moral hypocrisy seems

wholly misplaced. I have argued that international offences are those criminal rules that

cannot contribute in any meaningful way to the sense o f dignity and security of

individuals in TS unless at least some extraterritorial authority holds the power to

punish D for them. This is because, whenever this type of offence is committed on TS

it is the case that TS is either responsible for perpetrating, instigating or allowing them,

or simply unable to do anything about them.86 Accordingly, extraterritorial prosecutions

are based precisely on the grounds that TS would not normally prosecute D itself. Even

in cases of regime change it is unlikely that the new regime will have the political power,

or even the will to bring to account those members of the previous one who are

allegedly responsible for international offences. Chile and Spain are both standard

examples of this.

A second version o f the ‘clean hands’ challenge would go: What if the actual

regime is itself responsible for some international offence? Would this not undermine its

authority to try D? Surely a criminal state cannot legitimately claim this kind of

authority. Had the Nazis won the war, is the argument advocated here committed to

recognizing them as a legitimate authority to try the Allies for war crimes? One may say,

of course, that it is unlikely that such a regime would satisfy the NJT. Iraqi law under

Saddam, for instance, allowed for “the admissibility of coerced confessions, the

exclusion of Defence Counsel during some investigations, and some proceedings to be

closed to the general pubic.”87 In other cases blatant interference from the executive

branch, or admissibility of evidence obtained through torture, would disqualify S’s

86 See Chapter 3 above.87 Jose E. Alvarez, 'Trying Hussein: Between Hubris and Hegemony \ Journal of International CriminalJustice 2 (2004), 324.

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claim for authority. Yet, I suggest that even if S wanted to try these offenders fairly, it

would still lack the legitimate authority to do so. This is not because the court itself

failed to comply with the NJT, or the DT. Rather, the reason is that S punishing D

would not bring about the benefits of having a system of criminal laws in force.

Individuals living under such regime would not consider their rights protected by such

laws; they would not consider S bound by these laws.

The last and perhaps most difficult case is that o f a state S which, though perhaps

being relatively decent, has entered the war unjusdy or failed to fight it in accordance

with the laws of war.88 This was arguably the position of the US and the UK after

WWII where their authority to carry out war crimes trials was challenged on the

grounds of their own behaviour in the Dresden and Hiroshima bombings. This charge

points to the uneasy relationship between the categories of jus ad bellum,jus in bello and

jus post bellum. Whether they are logically and normatively interconnected is in itself a

highly complex and controversial question that cannot be addressed here. I suggest,

though, that the conception of authority advocated here can still provide a convincing

answer in this type of case.

According to the service conception, in so far as the court satisfies the NJT and the

DT and is justified in punishing D, there is no good reason to disqualify its authority to

try D. Few would argue that the U.S. lacks the authority to try offenders domestically

because of what it might have done in Abu Graib, Guantanamo Bay and elsewhere.

Whether it holds the authority to punish a murderer in Minnesota ultimately depends

on whether the competent court fulfils the requirements set out by the service

conception.89 Yet, there might be no inconsistency in claiming that, for example, Israel

has the moral standing to punish D domestically but lacks the standing to punish a

member of Hezbollah. And the reason for this would be that although Israel has

88 For the standard notion of decency in this respect see Rawls, The Taw of Peoples.89 D uff et al touch upon a related issue when they discuss whether S can claim authority to try D under unjust socio-economic conditions. Ultimately, they suggest that the criminal trial is not the appropriate forum for this kind o f claims, but rather that they should be discussed in a political forum (Duff et al., The Trial on Trial. Vol. 3, 156). In other words, they righdy suggest that we can never expect perfect

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committed no crimes against its own people, it allegedly has perpetrated some against

the Lebanese.

However, this case is harder to make than one would initially think. The first thing

that should be noted is that the charge of ‘clean hands’ consists in the claim that Israel

lacks the authority to punish Hezbollah fighter D, not because of any crime against her;

but rather for crimes it perpetrated in Lebanon and against some of her fellow

nationals. Accordingly, we need to explain what are the precise grounds of this charge.

Indeed, this objection cannot be simply grounded on nationality considerations. The fact

that some people who might have been unlawfully killed by S military personnel were

of S2 nationality would probably not disqualify S from trying a group of S2 terrorists

for hijacking a vessel flying S’s flag on the Mediterranean. Similarly, this objection does

not seem to rely on territorial considerations either, that is, on the fact that Israel might

have committed its crimes on Lebanese soil. If that were the case it would follow from

this that Israel would lack the authority to prosecute and punish a Turkish national who

is counterfeiting Israeli currency and Passports in Beirut.

Rather, I submit that the only situation in which S would lack the authority to try

D is when, because of its criminal wrongs, it will not be deemed to convict D for having

committed a crime by the relevant stakeholders. In such situation, the interest that justifies

S punishing D, that is, the interest in a criminal rule against some wrongdoing being in

force would not be served. An example might clarify this point. It might be the case

that the U.S. lacks the authority to try Iraqi insurgents for war crimes committed

against the Iraqi established authorities even if these acts constituted crimes under

international law. This is because, the U.S. would arguably be seen neither by the Iraqi

people nor it seems by anyone with a concrete interest in this type of acts being

punished as enforcing the relevant rule of international criminal law. Yet, we must be

careful not to overstate the scope of this argument. It entails neither that the U.S.

would lack the authority to try an Iraqi counterfeiting U.S. currency in Morocco, nor

that they would lack the authority to try war crimes committed by its own soldiers or

against them in Iraq.

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To sum up, then, my position is that the fact that S’s military forces have

committed war crimes in a conflict against S2, does not per se undermine S’s authority to

try and punish S2 war criminals. This, in so far as S is a minimally decent state and it is

seen by the relevant stakeholders as punishing D for the right reasons. Admittedly, it

would not be easy to set out a list of criteria for when a state stops being minimally

decent and becomes criminal in the sense that the Nazi state was arguably criminal.

Similarly, it would be hard to establish a clear test that would tell us when a particular

state would not be deemed to convict D for the right reasons. However, as already

stated, the aim of the theory here defended is not to decide where to draw the line, but

rather to account for standard cases and provide a clear and consistent explanation for

them.

6. Trials in absentia and of Defendants Abducted Abroad

This last section deals with two further issues that can arise in the context of

extraterritorial prosecutions: trials in absentia and trials of defendants who were

abducted or illegally transferred to the forum state. These issues do not pertain

exclusively to the domain of extraterritorial prosecutions. Yet they constitute a sensitive

issue that no theory of extraterritorial punishment can ignore. I shall examine whether S

can claim legitimate authority to punish D in these cases. Ultimately, I will argue that

while trials in absentia undermine S’s authority, the fact that D is present before a court

as a result o f having been abducted or illegally transferred does not.

Let us concentrate first on the issue o f trials in absentia. I am concerned here with

the question of whether S can try (and sentence) D if she was not present at her trial. I

will not examine borderline situations, such as when she flees or absconds during trial,

or just before sentencing or if someone is summonsed in an airport in S while in transit

to S2. My interest is in the core issue of principle, namely, with whether, for example,

France had the authority to try and convict Alfredo Astiz in absentia, that is, someone

who was never appropriately summonsed by the French authorities, nor present during

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his trial (and, for that matter, if Argentina had the right to refuse to extradite him on

these grounds).90

Although article 14(3)(d) of the International Covenant on Civil and Political

Rights explicidy establishes that all defendants have the right “to be tried in [their]

presence”, the general understanding is that there is no clear prohibition of trials in

absentia under current international law.91 In effect, even the Human Rights Committee,

which is in charge of ensuring the ICCPR’s implementation, noted that this provision

“cannot be construed as invariably rendering proceedings in absentia inadmissible

irrespective of the reasons for the accused person’s absence.”92 Trials in absentia are not

uncommon in many civil law countries.93 Although common law countries have tended

to be more reluctant, the US, for instance, has increasingly admitted this practice

domestically.94 Indeed, according to a recent survey, o f 139 national constitutions

examined, only 25 prohibited trials in absentia, and most of them provided for certain

exceptions to that general prohibition.95 These exceptions include, standardly,

unequivocal waiver on the part of the defendant, her causing disruption during trial,

and her absconding once the hearings have started. Under these lines, there would

seem to be hardly any point in examining this charge.

However, the status of trials in absentia is far from being as straightforward as these

facts seem to indicate. There are at least three elements in the law that undermine S’s

90 See, the ‘Universal Jurisdiction in Europe” the Redress Trust, at http://www.redress.org/ documents/ inpracthtml (last accessed July 8 2008).91 This right is also recognized, albeit implicidy, in article 6(1) o f the European Convention o f Human Rights, and it is implied by the confrontation clause contained the sixth amendment to the US Constitution. On the compatibility of trials in absentia with international law see, e.g., Stefan Trechsel and Sarah J. Summers, Human Rights in Criminal Proceedings (Oxford ; New York: Oxford University Press, 2005), 254; Cassese, International Criminal Ham, 402, Mark Thieroff and Edward A. Amley Jr., 'Proceeding to Justice and Accountability in the Balkans: The International Criminal Tribunal for the Former Yugoslavia and Rule 61', Yale Journal of International Ham 23, no. 231-274 (1998), 261; and Paola Gaeta, 'To Be (Present) or Not to Be (Present). Trials in Absentia before the Special Tribunal for Lebanon', Journal of International Criminal Justice 5 (2007), 1174.92 DanielMonguja Mbenge v Zaire, para. 76.93 See, e.g., the French Criminal Procedure Code, art. 639.94 James G. Starkey, Trials in Absentia', St. John's Ham Reriem 53 (1979).95 M. Cherif Bassiouni, 'Human Rights in the Context o f Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions', Duke Journal of Comparative <& International Ham 3 (1993), 279-280.

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jurisdiction in absentia. First, under the framework of the European Convention on

Human Rights, trials in absentia are acceptable only in so far as the person convicted can

obtain a retrial simply by asking for it.96 In addition to this, trials in absentia are far less

popular in cases of extraterritorial criminal jurisdiction. The ICC, ICTY and ICTR bar

trials in absentia almost absolutely. That is, defendants cannot be tried in absentia even if

they fled or absconded themselves after the beginning of the trial, and even if they have

unequivocally waived their right to be present.97 Although some hybrid tribunals have

admitted trials in absentia, they too provide for the possibility of retrial when the

decision is challenged by the defendant.98 Finally, the established law on extradition

shows that while many states are comfortable enforcing their own convictions in

absentia, they are far less happy extraditing offenders who have been convicted in

absentia abroad. Some jurisdictions require that the requesting state provides evidence

sufficient to support at least an indictment, but many may require a retrial altogether or

reserve the right to refuse to extradite her.99 Even France which, itself, is hardly against

trials in absentia has followed this trend.100

I suggest that the theoretical framework advocated in this thesis can help make

sense of these different claims. There is little dispute that D has a right to be “tried in

his presence”, using the language of article 14 of the ICCPR. A lot hinges, however,

upon the actual structure of this right. Arguably, one way of construing this right is in

terms of a claim-right.101 In that sense, the fact that D has a claim-right to be tried in

96 See, e.g., B v France and Colot^a v Italy.97 See ICC Statute Art. 63; ICTY Statute art. 21 (4)(d) and ICTR Statute art. 20(4)(d).98 See Article 22(1) o f the Special Tribunal for Lebanon Statute, rule 60 o f Special Court for Sierra Leone, and article 114 o f the SOC Law (Kram on Criminal procedure (8 /F eb /1993), applicable to the Extraordinary Chambers in the Courts o f Cambodia).99 Commentary, 'Foreign Trials in Absentia: Due Process Objections to Unconditional Extradition', Stanford Law Review 13 (1961), 377. The same rule applies in the UK, see Ivor Stanbrook and Clive Stanbrook, Extradition : Law and Practice (Oxford: Oxford University Press, 2000), 150-152. See also Extradition Act 1989, s 6(2).100 Stanbrook and Stanbrook, Extradition : Law and Practice, 150. Interestingly, in the Bo^ano case France was ultimately condemned by the ECHR for deporting the defendant to Switzerland, where he was to be extradited to Italy, after France refused to extradite him itself on the grounds that he had been convicted in absentia.101 There is hardly any question that this right entails a liberty. In usual circumstances, it would make little sense to say that D is under a duty not to be present at her trial.

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his presence only means that S is under a duty not to exclude D from the proceedings

by, for instance, denying her physical access to the courtroom. This possibly also entails

a duty to notify D about the hearings, etc. There is, of course, little doubt that this right

amounts at least to this. But this is not what the charge of trials in absentia is usually

about.102

A more ambitious way of describing this right is as containing also an immunity.

This immunity would entail that S simply lacks the power to punish D in absentia.

However, I suspect that this interpretation of the right to be tried in one’s presence has

little promise because one would have to demonstrate that the interest of D in being

present in court is sufficiently important to put S under a disability to try her. In other

words, this interest would have to outweigh the collective interest that individuals in S

have in S’s system of criminal rules being in force. In the light of both the modest

contribution that these rules being in force arguably make to these individuals’ sense of

dignity and security, and the serious consequences that follow from a criminal

conviction, one may be tempted to conclude that this individual interest does suffice to

confer upon D such an immunity. However, that would be too quick. First, we must

note that the charge is simply that D is absent, not that the court is biased or convicting

her on what is clearly insufficient evidence. Moreover, we must take into consideration

the real implications of D ’s absence. Most courts carrying out trials in absentia will

provide D with appropriate defence counsel ex officio. What is more, in most criminal

proceedings it is the fact that her counsel is present, not the fact that D is, that serves

D ’s interest the most.103 Provided this is the case, then, it seems that D ’s interest in not

being tried in absentia is hardly as weighty as we might have initially thought and that,

102 See criticisms by the Inter-American Commission in its Report on the Situation of Human Rights in Panama on this particular basis (O EA/Ser.L/C/11.44, doc 38, rev 1, 1978, accessible at < http://www.cidh.org/countryrep/Panama78eng/ chap.4.htm>, last accessed July 1st, 2008).103 Legal counsel is generally more effective in presenting evidence and scrutinising the case o f the prosecution, will not be perceived as trying to subvert the process in her favour, and will be less emotionally engaged. Duff et al, The Trial on Trial. Vol. 3, 212.

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ultimately, there are other ways of protecting that interest which do not amount to

conferring upon D this immunity.104

In any event, the fact that the right to be tried in one’s presence cannot be

conceptualized as an immunity does not exhaust the challenge that trials in absentia

represent for the authority of a criminal court. In effect, this charge may still undermine

the specific considerations on which S’s authority is based. The fact that under several

legal systems trials in absentia warrant a right to request a retrial seems to confirm that

they are seen as affecting specifically the bindingness of S’s decision rather than its

content.105 Indeed, trials in absentia would affect S’s complying with the NJT because

they may undermine the accuracy of the verdict.106 This would be the case, for instance,

when D is innocent or there was some mitigating circumstance, as she would know

best how to defend the case. Yet, this argument does not take us far enough. In other

cases the inculpatory evidence may be so overwhelming that D ’s presence would not

make much difference in terms of the accuracy of the outcome. Moreover, the

instances of trials in absentia that are the subject matter of my present analysis are such

that D, probably knowing about the existence of the proceedings, has deliberately

decided to stay at large (usually abroad). Accordingly, she cannot complain about the

inaccuracy of the result much in the same way as if she decided not to give testimony or

point to crucial exculpatory evidence at trial.

I submit that, ultimately, trials in absentia undermine S’s authority because they taint

the credibility of the Court, rather than the accuracy of its verdict. I argued above that

S’s authority rests not only on the NJT (and the DT for that matter), but also on the

reasons that justify S’s meting out legal punishment upon D, namely, that it contributes

to the system of criminal rules being in force. For this to obtain, D has to be punished

because she violated these rules. Yet when the credibility o f the proceedings is compromised,

104 Interestingly, this right was clearly understood as an immunity (“it deprived the court o f jurisdiction”) in the time when defendants were required to defend themselves without the assistance o f counsel. Starkey, 'Trials in Absentia', 723.105 See, e.g., the decision by the ECtHR in Colo^ya v Italy, Gallina v Fraser in the US, art. 639 o f France Code of Criminal Procedure, and article 22(3) o f the Statute o f the Special Tribunal for Lebanon.106 See Cassese, International Criminal Faw, 403.

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as is arguably the case when D is convicted in absentia, the fact that D is sentenced and

eventually punished does not convey to individuals in S the message that the reason she

is being punished is that she violated a criminal rule. This holds, I suggested, even if

they have good reason to believe she was guilty anyway. Put differently, the sense of

spuriousness that trials in absentia bring about stems from the fact that it is ultimately

crucial that D has herself or through counsel of her own choosing the opportunity to

challenge the accusation if the trial is to be perceived as fair. This is illustrated by the

fact that states themselves normally take great pains to ensure that defendants are

present throughout the trial even against their will, going as far as keeping defendants in

detention or making them liable to arrest in order to be brought to trial if necessary.107

E x officio defence counsel cannot ultimately convey to individuals in S (and elsewhere)

the belief that D ’s interests are being appropriately protected. Moreover, this sense of

spuriousness is enhanced by the fact that a priori it is not even likely that S will be able

to enforce that conviction. It is therefore only natural that sates are very reluctant to

extradite offenders convicted in absentia.108 Giving D the possibility of a retrial seems

the right solution. Yet, this simply means rejecting the bindingness (authority) of S’s

original decision.

Some may object that, all in all, given the policy goals advanced by extraterritorial

prosecutions (particularly those carried out for international crimes) and the difficulties

they normally will have to confront, trials in absentia are preferable to impunity.109 This

objection, however, misses the particular claim on which my argument against them

107 This account is also compatible with the fact that in less serious cases, some jurisdictions do not require the presence of the defendant (see, e.g., Magistrates’Courts Act 1980, ss. 11-12). Indeed, when the consequences o f the trial are potentially minor, as in a fine for a traffic violation, the sense o f spuriousness dissipates.108 Commentary, 'Foreign Trials in Absentia: Due Process Objections to Unconditional Extradition', 377. The author exemplifies this by quoting that “[i]n two [out of] seven reported cases concerning extradition o f persons convicted in absentia the American courts have discharged the prisoner on the ground that the evidence was insufficient to support even an indictment” (note 31). Similarly, Lord Widgery CJ, in Re Salvatore di Monaco, argued that sentences in contumacy “were o f such unsafe duration and security that they were not thought suitable to support extradition” (in ibid).109 Stefania Negri in Michael Bohlander, International Criminal Justice: A Critical Analysis of Institutions and Procedures (London: Cameron May, 2007), 29; Daniel J. Brown, 'The International Criminal Court and Trial in Absentia', Brooklyn Journal of International Paw 24 (1998-9), 782.

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stands. Admittedly, it is important that perpetrators of serious crimes, including but not

limited to international offences, are punished. It is also the case that extraterritorial

prosecutions will normally face great obstacles, o f which the fact that the defendant will

normally be at large abroad is but one. Nevertheless, my argument is that in so far as

trials in absentia undermine the credibility of the court, they do not serve the interest

thats justifies punishing offenders in the first place. That is, either because D remains at

large or because the reason why she is being punished is perceived as spurious, they

would not contribute to our sense that the criminal rule that has been violated is in

force, and that we have certain rights which the state endorses and protects.

Let us finally examine the cases in which D was abducted from the territory of S

and transferred to the abducting state’s (AS) territory to face trial. I will look in

particular at the case of abductions because it is arguably the most extreme case of

illegal transfer, but the argument I provide should also work for defendants who have

been transferred to the AS by stealth, fraud or other illegal means. This is a matter of

concern in international prosecutions. The trials of Eichmann, Barbie, Milosevic and

Nikolic were all preceded by abductions or transfers of questionable legality.110

Moreover, this issue affects extraterritorial prosecutions for domestic offences with

almost the same intensity, as the significant array of cases I refer to below illustrates.

Again, although this charge is perhaps more common in cases of extraterritorial

jurisdiction, it can similarly affect AS’s jurisdiction to try D for embezzlement

committed on its own territory, provided she is captured and transferred while living or

travelling abroad. Before I examine this issue a final caveat is in order. The purpose of

this section is to examine whether AS has jurisdiction to try D, not whether jurisdiction

should be exercised.111 In other words, it might be that there are all sorts of prudential

reasons why states should refrain from trying defendants who have been abducted

110 Simpson, Law, War and Crime, 116.111 F.A. Mann, ‘Reflections on the Prosecution o f Persons Abducted in Breach o f International Law’ in Yoram Dinstein, Mala Tabory, and Shabtai Rosenne, International Law at a Time of Perplexity : Essays in Honour of Shabtai Rosenne (Dordrecht Nijhoff, 1989), 414.

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abroad.112 Yet, the question here is only whether a decision reached in these cases can

claim to be authoritative, or the punishment inflicted justified. To claim that AS has the

right to punish D in these situations implies, in any event, that it would be up to AS,

and only up to AS, to weigh the countervailing prudential reasons.

It goes without saying that a state which authorizes or conducts the abduction of a

person from the territory of another state is responsible for a violation o f public

international law.113 However, it does not automatically follow from this that it lacks

jurisdiction to try D as a result o f that violation. A further argument is needed for this.

The traditional view is that an abducting state violates the victim state’s claim-right to

territorial integrity.114 This violation purportedly entails AS being barred from trying

her. Under this view, D would be entitled to bring this up in court herself, but she

would only have a ‘derivative’ standing to raise this violation as a bar to the exercise of

jurisdiction.115 This is because she suffered no greater deprivation than that which she

would have endured through lawful extradition.116

This view, however, rests on slippery grounds. It entails that the victim state’s (VS)

consent, even if given ex post, would make D ’s abduction morally unproblematic.117

This is unconvincing. The fact that VS’s authorities may have consented to the

abduction of D by AS’s officials does nothing to ease our central intuition that some

moral wrong has been committed. Instead of exonerating AS, we tend to see VS as an

112 Among the often cited ones are the risk o f international friction and the fact that states may sacrifice the recovery o f many more criminals through regular means in order to obtain a few drug runners or terrorists, etc. See Mann, ‘Reflections on the Prosecution o f Persons Abducted in Breach of International Law’, 420; Geoff Gilbert, Aspects of Extradition Law (Dordrecht, Netherlands: M. Nijhoff, 1991), 185 and Richard Downing, 'The Domestic and International Legal Implications o f the Abduction of Criminals from Foreign Soil1, Stanford Journal of International Law 26 (1990), 592.113 See Mann, ‘Reflections on the Prosecution of Persons Abducted in Breach of International Law’, 405, and the references in fn 1.114 AS may also be said to violate its treaty obligations vis-a-vis VS when there is an extradition treaty in force between them.115 Rosemary Rayfuse, 'International Abduction and the United States Supreme Court: The Law o f the Jungle Reigns', International and Comparative Law Quarterly 42 (1993), 886 citing Verdugo.116 Davis v Mueller; cited in Mann, ‘Reflections on the Prosecution o f Persons Abducted in Breach o f International Law’, 418.117 See article 16 o f the Harvard Draft Convention on Extradition, which states that “no state shall prosecute or punish [a defendant].... without first obtaining the consent o f the state or states whose rights have been violated” at 'Harvard Draft Convention on Extradition ', American Journal of International Law 29, no. Supp. (1935), 623.

accomplice to that wrong. Thus, the wrong to VS simply does not exhaust whatever it

is that we find morally objectionable about extraterritorial abductions.

Furthermore, I submit that the traditional view fails even in its own terms. It is far

from clear that even in cases where VS does not consent to the abduction, the necessary

implication of the wrong is a bar to AS’s power to try her. When abducting D, AS

violated VS’s claim-right to its territorial integrity. This claim-right, I have argued, is

explained by the interest of individuals in VS in foreign officials not going around

physically enforcing their own laws on VS’s territory. It is unclear that this particular

interest extends to AS lacking the normative power to punish D. VS’s claim-right and

AS’s power belong to different levels.118 Thus, there seems to be no clear reason why

compensation should be ruled out as an appropriate remedy for the breach of this

claim-right. Or, put differendy, there seems to be no reason why the only acceptable

remedy for this breach would be the restitution of D to the territory o f VS before she is

tried. Ultimately, as Rayfuse suggests “a claim by an offended State for a violation of its

rights ... is a separate and distinct matter from the issue o f whether an individual might

be entided to rely on that violation as a bar to the exercise of a domestic court’s

jurisdiction.”119 To infer this bar from the former violation is to reason on the basis of

a non sequitur.

A more promising line of argument for AS’s lack of authority to try D is to see D ’s

abduction as an infringement of some o f her individual rights. Arguably, these

abductions violate D ’s rights to personal liberty and freedom from arbitrary arrest and

detention.120 The crucial question is, once more, whether these violations warrant

conferring upon AS a disability to try and eventually punish D. This implication is far

from straightforward. In the eloquent words o f F.A. Mann, “[w]ith rare unanimity and

undeniable justification the courts of the world have held that the manner in which an

accused has been brought before the court does not and, indeed, cannot deprive it of

118 See the section 3 o f the general Introduction to this thesis.119 Rayfuse, 'International Abduction and the United States Supreme Court: The Law o f the Jungle Reigns', 890.120 See, e.g., Article 9 o f the ICCPR, article 5 o f the ECHR and article 7 o f the American Convention o f Human Rights.

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its jurisdiction, o f its right to hear the case against the person standing before it.”121

This is the central tenet o f the famous U.S. Supreme Court’s Ker-Frisbie doctrine and is

illustrated by the old adage mala captus bene detentus.122 Admittedly, the UK and New

Zealand have stayed criminal proceedings on the grounds that the defendants had been

illegally abducted abroad.123 However, these decisions were not based on the

proposition that they lacked the power to try them. Rather, they were framed on them

having discretion (the power) not to hear the case.124

I want to argue that the fact that D was abducted from VS does not, per se,

undermine AS’s authority to try her. This may seem deeply counterintuitive.125 But I

think this intuition is simply misplaced. Arguably, AS’s behaviour constitutes a violation

of the substantive rule against abducting individuals. However, this does not necessarily

affect any of the considerations on which AS’s authority to punish her stands. The fact

that D was abducted abroad affects neither the NJT nor the DT. She can clearly be

convicted (or acquitted) on the basis of accurate and reliable evidence, her procedural

rights during the investigation and trial upheld, and the Tribunal may ultimately decide

on the basis of reasons which independendy apply to individuals in AS (whether D was

innocent or guilty).126 In that spirit, the U.S. Supreme Court in A.lvaret<pMachain argued

that the constitutional procedural safeguards o f a fair trial were sufficient to satisfy the

121 Mann, ‘Reflections on the Prosecution o f Persons Abducted in Breach o f International Law’, 414. For a list o f papers both supportive and critical o f this position see Jacques Semmelman, 'Due Process, International Law, and Jurisdiction over Criminal Defendants Abducted Extraterritorially: The Ker- Frisbie Doctrine Reexamined', Columbiajournal of Transnational Taw 30 (1992), fn 20 and 21 respectively.122 Named after the series o f cases by which it was established: see Ker v Illinois, Frisbie v Collins. For a more recent application o f this doctrine see United States v Alvare^ Machain.123 Connelly v DPP and R. v Hartley, respectively.124 In R v Horsefeny Road Magistrates Court, ex parte Bennett, the House o f Lords held that the judiciary had the power to “oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule o f law” (Per Lord Griffiths, 150). Yet, as it has been correctly argued, this already assumes that UK courts have the power to hear the case (Rayfuse, 'International Abduction and the United States Supreme Court: The Law o f the Jungle Reigns', 893-894).125 Indeed, many authors disagree with this claim. See, Duff, Answering/or Crime, 182 and references in fn 131.126 This distinction seems to be incorporated in the law o f some countries. Interestingly, an individual who is abducted, or even illegally arrested, may be able to suppress statements or evidence provided during his illegal custody (see Robert M. Pitler, "'The Fruit o f the Poisonous Tree" Revisited and Shepardried', California Taw Review 56 (1968), 601 and f£). The reason for this, I would suggest, has nothing to do with the fact that she was abducted per se, but with their lack o f reliability.

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requirements of due process o f law.127 Moreover, I do not think that the credibility of

AS’s courts in terms of the fact that D is being punished because she committed an offence is

necessarily undermined by her abduction. No one seems to criticize the trial of

abducted defendants on this ground. Accordingly, I submit that the adequate response

to the violation of the substantive rule prohibiting kidnapping is to punish its

perpetrators. If the state of Virtuosia were to prosecute and punish also its own state

officials who ordered and carried out the unlawful abduction (regardless of their

position in government) or allow their extradition to VS few people would still find it

problematic that it claims the normative power to punish D.

To support my case further, let me explain why the three standard arguments on

which AS’s disability is based fail. First, the question has been sometimes framed as a

matter of extending the exclusionary rule beyond the suppression of evidence which

has been illegally obtained to the suppression of defendants who have themselves been

illegally seized and brought before the court.128 The first thing to note is that the

feasibility of this extension depends on the rationale underlying the rule. This extension

is normally based on the proposition that we exclude evidence obtained illegally to

deter officials’ misconduct during an investigation.129 Accordingly, this rationale implies

that we should also suppress D ’s presence to deter abductions. I am not, as is perhaps

clear by now, a big supporter o f deterrence generally. Above I argued for an alternative

approach to explain the exclusion of certain pieces of evidence in trial. I submit that

this rationale fails also to explain this purported implication in its own terms.

Prosecuting and punishing AS’s officials themselves would have a much greater

127 On trial, the charges against Alvarez-Machain were dismissed on the basis o f insufficient evidence, (see Rayfuse, 'International Abduction and the United States Supreme Court The Law o f the Jungle Reigns', 886-887).128 Note, The Greening o f a Poisonous Tree: The Exclusionary Rule and Federal Jurisdiction over Foreign Suspects Abducted by Government Agents', N Y U Law Review 50 (1975), 682. See also Duff, Answering for Crime, 185-186.129 Deterrence seems to be particularly popular with some American writers: see Pitler, "'The Fruit o f the Poisonous Tree" Revisited and Shepardized', 580; Julie Philippe and Laurent Tristan, 'International Law, Extraterritorial Abductions and the Exercise o f Criminal Jurisdiction in the United States', Willamette Journal of International Law and Dispute Resolution 11 (2004), 75. See also Judge Mansfield writing for the majority in Toscanino. The U.S. Supreme Court, however, has explicitly rejected this rationale with respect to the suppression o f a defendant in United States v Crews.

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deterrent effect on abductions than simply returning D to VS. Moreover, maximization

o f the law's deterrent effect would indicate that AS should also seek to punish D, instead

of sending her back. O f course someone will object that, as a matter of fact, the

deterrent effect of AS prosecuting its own officials would be very weak because AS will

normally be very reluctant to do so (let alone extradite them to VS). However, this is

hardly a reason to advocate suppressing D over my preferred course of action. As most

o f the cases in this area show, states are as reluctant to suppress abducted offenders as

they are to prosecute their own officials.

A further reason on which AS’s lack o f jurisdiction is often based suggests that its

government should not be allowed to ‘benefit’ from infringing the defendant’s rights.

As the maxim says, ex injuria jus not oritur, i.e., AS should be barred from realizing the

fruit of its unlawful act by bringing the accused to trial.130 This argument seems to be

based again on a misuse o f the domestic analogy. It implies that it is the government or

the state of AS itself who benefit from D being punished. This might be so in certain

instances, but it is certainly not the reason why that state itself holds the power to

punish D. This power should be explained by the fact that it benefits the individuals who

happen to live or be in AS. Accordingly, in so far as it relies on the claim that it is AS or

its government who benefits from punishing D, this argument is simply flawed. By

contrast, if we take into consideration the interest of individuals in AS in its system of

criminal laws being in force, this interest would lead, as I have argued, to AS holding

the normative power to punish both D and the officials who ordered and executed her

abduction.

Finally, some argue that by trying D AS’s courts become accomplices in the

government’s criminal activities.131 This seems to be a form of the ‘clean hands’

argument I have addressed in the previous section. I argued there that states cannot be

treated as individuals in the sense that because some of its agents are responsible for

130 Mann, ‘Reflections on the Prosecution o f Persons Abducted in Breach o f International Law’, 415. See, also, Pider, '"The Fruit o f the Poisonous Tree" Revisited and Shepardized', 600.131 Note, The Greening o f a Poisonous Tree: The Exclusionary Rule and Federal Jurisdiction over Foreign Suspects Abducted by Government Agents', 694. Also Philippe and Tristan, 'International Law, Extraterritorial Abductions and the Exercise o f Criminal Jurisdiction in the United States', 79.

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some given wrong, the whole state should be barred from punishing those who violate

its criminal laws. Moreover, the fact that AS also prosecutes and punishes those

responsible for the abduction entails morally distancing itself from the wrongdoing.

Accordingly, one would hardly argue that it remains an accomplice of that wrong.

To conclude, I have argued that as a matter of principle it would be mistaken to

derive from D ’s abduction a bar to AS’s power to try D. Rather, the appropriate

normative implication of this wrong is that AS should also prosecute and punish those

responsible for it. By doing this, AS both enforces the belief in the rule against

abductions being in force, and morally distances itself from the wrong suffered by D.

The appropriate remedy for the violation of D ’s daim-rights is therefore a civil suit for

damages, not her return to VS. This is also consistent with the claim that, as argued

above, VS’s consent to D ’s abduction or its collusion with AS’s authorities should have

no bearing on AS’s power or lack of it. That many would still feel uneasy with my

proposed solution has to do with the fact that few states would normally behave like

Virtuosia.132 Yet we should not misconstrue the theoretical implication of this fact. It

might well be that the best way of institutionalising the bundle of moral claim-rights,

powers, and liabilities examined here is to bar AS from punishing D in this type of

cases. However, my point is that that this solution would be based on expediency, not

moral principle or conceptual rigour.

6. Conclusion

This chapter closes my general theory of extraterritorial punishment. I have defended

three main propositions. First, I argued that the question regarding the conditions that

any body should meet in order to hold, itself, the power to punish D is ultimately a

question regarding whether it has the authority to punish D. Secondly, I have argued that

Raz’s version of the service conception of authority provides us with an insightful and

convincing account of why (and when) we should recognize a given body having the

132 The US, e.g., explicitly authorized the FBI to abduct foreign nationals subject to outstanding U.S. arrest warrants currently residing abroad, and to bring them back for trial. See Downing, The Domestic and International Legal Implications o f the Abduction o f Criminals from Foreign Soil'.

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authority to punish D, and what it means to consider its decisions authoritative. I have

argued that for X to have the authority to punish D it must carry out a thorough

investigation of the facts and the relevant law (it must be able to claim an epistemic

advantage), it must try D fairly, it must have some de facto authority, and it must serve

the particular interest that justifies it holding this power. Finally, I have examined

several charges usually raised against extraterritorial prosecutions such as the issues of

show trials, ‘clean hands’, victor’s justice, trials in absentia and trials of individuals

abducted or illegally transferred from abroad. I have assessed how convincing each of

them is as an objection against X having the power to punish D, and reached different

conclusions in each case. In doing so, I have argued both that, analytically, they are all

arguments against X having the authority to punish D, not against it being justified in

doing so; and that in every case whether X has the authority to punish D is unrelated to

the issue o f extraterritoriality. This confirms the view suggested throughout the thesis,

and advocated in this chapter, that although a complete explanation of the power to

punish D needs to account for X having authority, the extraterritorial scope o f this power

rests on the particular interest that explains conferring this power on X, and on who

the holder of this interest is.

A final remark is in order here. The reader might find the conditions set out in this

chapter quite demanding. Yet we should not underestimate the importance of this

aspect of the account of authority for the overall argument I have developed. In

Chapter 1 I argued that under the justification for legal punishment defended there,

states hold the power to punish an innocent individual (by mistake). Even if it would be

wrong, the exercise of this power would effect a normative change in IN ’s moral

boundaries. I have similarly argued in this chapter that X’s decision would be binding

upon third parties even if mistaken (unless the mistake is a clear one). As a result of

this, I suggest that the fact that the conditions X must satisfy are quite stringent is

crucial if my account is to be able to tame the unsettling effect that these claims may

bring about.

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Conclusion

1. The argumentThis thesis presents a philosophical account of the morality of extraterritorial

punishment. I have provided a justification for certain specific instances of

extraterritorial jurisdiction held both by individual states and by the International

Criminal Court and challenged the moral defensibility of other well-established rules.

Yet this thesis is not meant only as a narrow exploration o f the rules that should govern

the distribution and scope of criminal jurisdiction under international law. I submit that

the issue o f extraterritoriality also forces us to revise our understanding of the reasons

we have for punishing offenders, and stirs the debate on the justification for legal

punishment in a new and pressing direction. Overall, I submit that the theory of

extraterritoriality advocated here is better equipped than the leading accounts of

punishment available in the literature to make sense of our core intuitions and practices

regarding the extraterritorial scope of the right to punish.

By way of concluding remarks, I will provide a summary of how the argument I

have developed throughout this thesis fits together. I have endorsed here a rights-based

approach. The question I address is therefore under what conditions would a given

body B hold the moral right to punish O extraterritorially. Following Hohfeld, I

distinguished four different types o f rights, namely, liberties, claims, powers and

immunities. I suggested that the right to punish is essentially a normative power. It is

the capacity to modify the first and second order incidents held by a particular

individual O. This power is normally coupled with a liberty, and a claim-right against

others interfering, etc., though these other incidents do not play a significant role in my

overall argument. Furthermore, I have argued that rights are best explained as interests

o f a particularly important kind. In order to assign B the power to punish O we must

identify a specific interest that is sufficiendy important to warrant putting O under a

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liability to being punished.1 But this is not the end o f it. We need also to account for

the specific body (B) having the authority to exercise that normative power.2

Distinguishing these two separate arguments is crucial for the purposes of providing an

analytically sound account of extraterritorial punishment. Throughout this thesis I have

argued that the extraterritorial scope o f B’s power to punish O rests exclusively on the

particular interest that explains B holding this power and, crucially, on whose interest it

is. By contrast, I have argued that despite being a necessary condition for B to hold this

particular power, the considerations on which B’s authority stands are conceptually and

normatively separate from the scope of its power.

Indeed, in Chapter 5 I have applied one of the leading philosophical accounts of

authority to explain, in particular, why and when we ought morally to recognize the

authority o f a given court. I have argued, perhaps uncontroversially, that in order for B

to have the authority to punish O, it must carry out a thorough investigation of the

facts and the relevant law (it must be able to claim an epistemic advantage), it must try

0 fairly, it must have some de facto authority, and it must decide based on the reasons

that justify it holding this power. I also suggested, perhaps more controversially, that in

order for B to have the moral standing (authority) to try O, there need not be any

particular relationship between them, such as citizenship or nationality. Finally, I have

argued that some of the most common charges usually raised against extraterritorial

authorities punishing O, such as victor’s justice, tu quoque, show trials, or trials in absentia

or against defendants abducted abroad, are unrelated to the extraterritoriality of B’s

power.

By contrast, I have explained the power to punish O by reference to the collective

interest o f individuals in there being a system of rules prohibiting criminal wrongdoing

in force. I argued that having such a system of criminal rules in force contributes to

their sense of dignity and security. That is, it reinforces their view o f them being rights-

1 I have also endorsed a broad cosmopolitan position, Le., that in order to examine this particular question we must ultimately consider the interests o f individuals, we must look at the interests of all the relevant individuals concerned, and their interest should matter equally regardless o f their nationality, religion, etc.2 See section 3.3. in the General Introduction to this thesis.

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holders, and of their rights being protected by a system of legal rules. The fact that

these rules are in force is not a mere psychological fact. For a legal system to be in

force, this psychological fact needs to rest on certain specific considerations. In short,

those who violate them (or those who we have sufficient reasons to believe they have

violated them) should be punished, they should be punished by an authority expressly

au th o re d by that legal system, and they should be punished for having violated these

rules.

Moreover, I argued that S is at liberty to exercise this normative power against an

offender O. This is because whe she commits a crime, O forfeited her claim-right

against being punished. The forfeiture mechanism has been explained by reference to

the fact that the claim-right against being punished, like almost every other moral right,

is conditional upon the conduct of its holder. In particular, I argued that the claim-right

against being censured in the way punishment requires is conditional upon O not

committing a moral wrong.

This explanation for the right to punish O has some important advantages over

other competing accounts in its own terms. First, it accounts for the fact that the right

to punish O is a normative power, and not simply a liberty to inflict suffering upon O.

Moreover, it can accommodate the fact that every single state (and every single

international, or hybrid criminal tribunal) claims the power to punish an innocent

individual (although, not qua innocent), while at the same time retain the core intuition

that it would be wrong (i.e., that it would not be at liberty) to do so.

Most significantly, perhaps, I have argued that this argument is overall the best

suited to account for our core intuitions regarding both the territorial and

extraterritorial scope of this normative power. I have argued that individuals in state B

share an interest in these rules being in force on the territory of B that is sufficiendy

important to confer upon B the power to punish every violation of a criminal rule

perpetrated on its territory. A murder in France undermines the sense of bindingness of

the prohibition of murder in France irrespective of the nationality o f both the offender

and the victim. By contrast, I have argued that individuals in France lack an interest in

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the French criminal rules being in force in, for example, Canada that is sufficientiy

important to be protected by a right. Nor do individuals in Canada have an interest in

the French criminal laws being in force in Canada that would warrant conferring on

France the power to punish O.3 Ultimately this is because the French criminal laws

cannot provide individuals in Canada with the sense of dignity and security they can

provide individuals at home. Rather, individuals in Canada have an interest in Canada’s

criminal rules being in force there. It is this fact that would contribute to their sense of

dignity and security. For these purposes I have suggested it is immaterial whether either

or both the offender (O) or the victim (V) happen to be French nationals.

This implies a somewhat frontal attack on two reasonably well established rules on

extraterritorial jurisdiction provided for under international law: the nationality and

passive personality principles. In order to make my stance more plausible I have argued

that most of the arguments on which these principles are based either beg the

fundamental question they are meant to answer, or end up advocating much broader

rules of extraterritorial jurisdiction than they admit to.

I have argued, by constrast, that states hold a power to punish offences committed

extraterritorially when they affect their sovereignty, security or important governmental

functions. Unlike with the nationality or passive personality principles, in this case it is

the interest of individuals in PS in its prohibition against, for instance, counterfeiting of

currency being in force extraterritorially that explains this extraterritorial scope. This,

however, does not fully account for allocating this power to PS. In order to confer

upon PS the power to punish O extraterritorially, PS not only needs to justify holding

this power to O, but also to individuals in TS. In other words, I have argued that the

principle of sovereignty normatively entails that individuals in TS have a collective

interest in TS being a self-governed entity that is sufficiently important to warrant

conferring upon TS a prima facie immunity against extraterritorial bodies dictating

criminal rules binding on its territory. Yet I also recogni2ed that this immunity is not

3 In fact, I have argued that the opposite is true. They have an interest in France’s criminal law not being in force in Canada that is sufficiendy important to warrant conferring upon individuals in Canada a prima facie immunity.

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absolute. It is limited, inter alia, by the interests of individuals abroad. Moreover, the

interest of individuals in TS in an extraterritorial authority (PS) not dictating criminal

rules prohibiting certain acts against its own (PS’s) sovereignty, security or important

governmental functions committed in TS does not outweigh, in particular, the

collective interest of individuals in PS in such a rule being in force extraterritorially.

This means that even if TS generally holds an immunity against extraterritorial bodies

prosecuting offences committed on its territory, this immunity would not normally

preclude an extraterritorial state acting on the basis of the principle of protection.

A further crucial distinction is in order. I have argued that this restrictive

framework of extraterritorial jurisdiction applies only to domestic crimes such as

murder, rape, robbery, fraud, etc. I have argued, by contrast, that some crimes, namely

international ones, should be subject to broader jurisdictional rules. This is because

when an international crime such as war crimes, crimes against humanity, genocide, etc.

is perpetrated on TS, it must necessarily be the case that TS is either responsible for it,

is encouraging or supporting the perpetrators, or can simply do nothing about it. As a

result of this, the relevant international criminal law cannot really be in force in the

territory of TS unless at least some extraterritorial authority holds a concurrent power

to punish O. Assuming that individuals in TS have a fundamental interest in these

prohibitions being in force, it is their interest that warrants conferring upon PS the

power to punish O.

I have also argued that TS’s prima facie immunity against PS punishing O

extraterritorially must be addressed by the explanation o f the jurisdictional rules

applicable to international crimes. This allows me to introduce an important distinction.

It is not my claim that the commission of any kind of offence on a widespread or

systematic basis warrants conferring upon PS the power to punish O for a crime on TS;

only the commission of particularly heinous or serious type of crime would. It therefore

follows that the interest o f individuals in TS in the rule against widespread bicycle theft

being in force on TS might not suffice to override TS’s immunity, but their interest in

the rule against widespread torture would. This is an important qualification because it

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accounts for one of the most extended normative features usually associated with

international crimes (their moral heinousness), and it allows the framework I advocate

to specify exactly what normative work it does.

Admittedly, this is not yet an argument for universal jurisdiction; at least, not

explicidy. Thus, in Chapter 4 I submitted that the interest of individuals in TS by itself,

could suffice to warrant conferring upon every state the power to punish international

crimes committed on its territory. There is no conceptual problem with conferring

upon A a right on the basis o f an interest exclusively held by B. Yet I argued that

universal jurisdiction is also advocated on the basis o f the interests o f individuals in

TS2, TS3, etc., namely, other states where these crimes are being perpetrated, or have

been perpetrated recendy; and I have argued that certain individuals in other states (PS,

PS1, etc.), like refugees or members of relevant minorities in a country like Switzerland,

might also have an interest in these rules being in force, as they would also contribute

to their sense of dignity and security. The collective interest of all these individuals in

the rules against widespread or systematic torture, war crimes, genocide, etc. being in

force explains, or so I have suggested, the fact that every state holds the power to punish

O for an international crime irrespective of where the crime was committed, or the

nationality of both offenders and victims.

I have also argued that this joint interest would warrant conferring upon the

International Criminal Court the same broad jurisdictional competence. The ICC is a

treaty-body created by a number of states; it is not a global criminal court. Accordingly,

the scope of its jurisdiction is usually explained by recourse to the powers that its state

parties have delegated upon it. I have argued that as a matter o f normative argument

this delegation framework does no justificatory work whatsoever. The scope of the

ICC’s power to punish O rests directly on the interest of the relevant individuals. And

just as these individuals (those in TS, TS2, TS3, PS, PS2, etc.) have a joint interest in

these rules being in force that is sufficiently important to confer upon every state the

power to punish O, this interest also warrants conferring upon the ICC a power to

punish O that is universal in scope. Thus, I have argued that the jurisdictional regime

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currently enjoyed by the ICC, which confers upon it universal jurisdiction only if the

case is referred to the Prosecutor by the U.N. Security Council is unduly restricted from

a normative point o f view.

Finally, this framework provides for a third type of criminal provision with

different and case-specific jurisdictional rules. These are internationalized or trans­

national criminal laws. I have argued that states can authorize extraterritorial bodies to

punish O for an offence she committed on their territory. In other words, the interest

that justifies TS holding the power to punish O also warrants conferring upon TS the

power to reach an agreement with PS so that PS can enforce a particular criminal

provision in force in TS. This, again, is explained by referenced to the interests of

individuals in TS, and it still means that PS lacks, itself, the power to punish O. I have

recognized that it would be particularly sensible to reach this kind of agreement in

matters such as organized crime, certain environmental crimes, etc. But we need to be

careful in the kind of inferences we draw from this proposition. This means, that states

can ‘regionalize’ certain criminal provisions, and allow each other to exercise

jurisdiction for crimes committed on their respective territories or against their

respective security, sovereignty or important governmental functions. However, this

only means that states have a prudential reason to authorize extraterritorial bodies to

punish O for this type o f crime; but this is not the same as saying that these

extraterritorial bodies (e.g., PS) themselves have the power to punish O. This claim

both makes my overall position more flexible and largely accounts for internationalized

or trans-national approaches to the criminal law in certain areas.

With this I close this summarized exposition of the general account of

extraterritorial punishment advocated in this thesis. I submit that this account has some

important advantages over other competing arguments, and it is worth highlighting a

few salient ones. First, it can convincingly explain why states hold the power to punish

every single offence committed on their territory irrespective o f the nationality of O

and V. I have argued that accounts such as D uffs influential communitarian theory of

punishment faces significant difficulties on this account. Secondly, it can readily

240

distinguish domestic from international crimes, at least with respect to the jurisdictional

rules that apply to each of them. This constitutes an important advantage over other

retributivist, consequentialist or mixed theories available in the literature. These, I have

argued, mosdy collapse this distinction and advocate states holding universal

jurisdiction for both of them. Finally, this account of the morality of extraterritorial

punishment provides a systematic normative argument that makes sense of all the

relevant instances of extraterritorial jurisdiction. With this lies an important advantage

over most philosophical or normative work done in this area of international law,

which standardly rests on ad hoc arguments not easily transferable to other instances of

extraterritoriality. I submit that the analytical framework I have put forward brings a

significant amount of clarity, insight and conceptual rigour to an often messy and

largely under-theorized debate.

2. Avenues for future research

In this thesis I have addressed the core principles o f international law that purportedly

regulate the scope of states’ and other tribunals’ jurisdiction, namely, the principles of

territoriality, nationality, passive personality, protection and universality. I have also

explained how different principles apply to the cases o f domestic and international

crimes. However, I have only been able to address what I have described as “standard

cases”. I have neither really tackled the issue of when a particular crime can be said to

be perpetrated on the territory of TS nor examined other less central, though by no

means less philosophically challenging instances o f extraterritoriality. This, I suggest, is

not really a weakness of this project, but rather points to some interesting paths for

future research.

In the context of the rules o f international law governing the distribution of

criminal jurisdiction for domestic offences, for instance, it is worth trying to provide a

more detailed examination of the contours o f the principle of territoriality. In

particular, I suggest it is worth examining the moral credentials of the controversial

‘effects doctrine’ by which a state can exercise jurisdiction over O “for conduct outside

241

its borders that has consequences within its borders which the states reprehends”.4

Similarly, I suggest it is worth looking at the rationale behind states’ jurisdiction on

vessels and aircrafts flying their flag and within their embassies abroad.5 These are

highly symbolic instances of extraterritoriality which further illustrate how entrenched

this feature is in domestic criminal law systems and how problematic it is for any

account o f the philosophical foundations of the criminal law.

With regards to extraterritoriality in the context of international criminal law, there

are two essential developments which might be o f interest. First, I suggest it is worth

expanding the theoretical understanding of international crimes and compare the

analysis I provided of terrorism with piracy or aggression. Secondly, I suspect it would

be of interest to explore in some detail the relationship between the justification I am

advocating for the power to punish and other values, such as peace and reconciliation,

but also economic and social development. For that purpose, I believe greater

interaction with the paradigm of restorative justice, the practice of truth and

reconciliation commissions and the normative constraints of transitional justice theory

are warranted.

Finally, and from a different standpoint, there are other instances o f ‘quasi’

territoriality that it would be worth examining in some detail. Mainly, I am referring

here to the case o f occupying forces and transitional administration regimes and their

holding the power to punish O both for domestic and international crimes. To what

extent, if at all, these foreign, albeit territorial institutions should hold the power to

punish O for an offence committed on the occupied or administered territory is a

question of momentous significance in situations such as post-war Iraq. To conclude,

this thesis provides a fully developed philosophical argument for extraterritorial

punishment, a contribution much needed in this area o f the law; however, it cannot and

4 US v Aluminium Corp of America, at 443. See also Vaughan Lowe, Extraterritorial Jurisdiction : A n Annotated Collection of Legal Materials (Cambridge: Grotius Publications, 1983) and Hirst, Jurisdiction and the Am bit of the Criminal Law, 47-48.5 Hirst, Jurisdiction and the Am bit of the Criminal Law.

242

does not claim to exhaust the normative problems raised by this increasingly important

aspect of the criminal law.

243

List o f cases

Arancibia Clavel (Argentine CSJN, decision n 259, 24 August 2004).Adolfo Arai% Flamariqe et al. by the Spanish Constitutional Court (STC 136/1999 in

BOE num. 197,18/08/1999, 26-96).Asti% Alfredo, Paris Court o f Assi2e, case n°1893/89, verdict o f 16 March 1990,

unreported.Attorney-General of Israel v Eichmann, 36 I.L.R. 277 (Supreme Court of Israel, 1962).B v France (ECHR) Application 10291/83 (12/05/1986).Barrios Altos (Chumbipuma Aguirre and others v Peru) Inter-American Court o f Human

Rights (14/03/2001).in re Bayot, [1923-1924] Ann. Dig. 109 (No. 54) {Cour de Cassation, France, 22 February

1923).R.v Horsefeny Road Magistrates Court, ex parte Bennett [1994] 1 A.C. 42.Blackmerv United States, 284 U.S. 421, 427 (1932).Bo^ano v France, ECtHR, judgment of 18 December 1986, Series A no. 111.Certain Criminal Proceedings in France (Rjepublic of the Congo v France).Colo^ya v Italy (ECHR) 12/02/1985, Application 9024/80.Connelly v DPP [1964] A.C. 1254.Dla^v United States (US Supreme Court) 233 U.S. 442 (1912).DanielMonguya Mbenge v Zaire, No. 16/1977, U.N. Doc. CCPR /C/O P/2.Davis v Mueller, 643 F2d 521 (1981), Court of Appeals, Eighth Circuit.Democratic Republic of the Congo v Belgium, I.C.J. Rep., 2002.Federation Nationale des Deportes et Interne's RJsistants et Patriotes v Barbie, 78 I.L.R. 125

(French Court de Cassation (Criminal Chamber), 1985).Finta, Canada Supreme Court, decision o f 24 March 1994, in [1994] 1 RCS, at 837. Fomage case (French Court of Cassation, 84 J. du Palais 229 -1873).Frisbie v Collins, 342 U.S. 519 (1952).In re Extradition ofDemjanjuk, 612 F. Supp. 544 (N.D. Ohio 1985).In re Javor, France, Cour de Cassation, 26/03/1996, in Bull. Crim., no. 132 1996, 379.Jones v United States 137 U.S.202L (1890).Joyce v DPP [1946] AC 347.Justice Case, United States v Altstoetter, 3 CCL 10 in Trials o f war criminals before the

Nuremberg military tribunals under Control Council Law No. 10, October 1946 - April 1949, at 15.

Gallina v Frayer, 278 F.2d 77 (2d Cir. 1960).Kennedy v Mendo^a-Martine^ 372 U.S. 144 (1963).Kerv Illinois, 119 U.S. 436 (1886).U a Oinglin, Supreme Court of Spain, chamber for criminal matters, decision 645/2006

(20/6/2006).Lotus case, PCIJ, Series A, no. 10.Matta-Ballesteros v Henman, 896 F.2d 255 (7th Cir.), cert, denied, 111 S.Ct. 209 (1990). Olmstead v United States, 277 U.S. 436 (1928).

244

Prosecutor s Anto Furundcfja, 38 I.L.M 317 (ICTY, 1999).Prosecutors Balskic, Case No. IT-95-14-T (Trial Chamber I, ICTY, March 3, 2000).Prosecutors Delalic, Case No. IT-96-21-T (ICTY Nov. 16, 1998).Prosecutor s Deronjic, Case no. IT-02-61-A, at 136 (ICTY Appeals Chamber, July 20,

2005).Prosecutor s Erdemovic, Case No. IT-96-22 (Trial Chamber, Sentencing Judgement (29

November 1996)).Prosecutors Rjctaganda, Case No. ICTRY-96-3-7 (ICTR Trial Chamber Dec. 6, 1999).Prosecutors Tadic case, Case IT-94-A-AR72, reprinted in 35 I.L.M. 32 (1996).Prosecutors Tadic, Case no. IT-94-1-T, Trial Chamber II, May 7 1997.Pubic Prosecutor s Jorgic, Federal Constitutional Court (Bundesverfassunsgericht) of

Germany, 12/12/2000.R v Hartley [1978] 2 NZLR 199.re Kurt, ECtHR, Judgment of 25 May 1998.Republic of Bolivia s Indemnity Mutual Marine Assurance, [1909] 1 KB 785.Rigoberta Menchu, Constitutional Court of Spain, second chamber, decision 237/2005

(26/09/2005).Stone v Powell, 428 U.S. 465 (1976).United States s Aluminium Corp of America, 148 F 2d 416 (1945).United States s Alvare^ Machain, 504 U.S. 655 (1992).United States s Bowman, 1922, 260 U.S. 94 (1922).United States s Crews, 445 U.S. 463 (1980).United States s Palmer 16 U.S. (3 Wheat.) 610 (1818).United States s Furlong 18 U.S. (5 Wheat.) 184 (1820).United States s Hermann Goering et al, reprinted in 1 Trial o f the Major War Criminals

Before the International Military Tribunal 27, 41 (1948).United States s King, 552 F.2d 833, 851 (9th Cir. 1976).United States v Yunis (No. 2) 681 F Supp 896 (1988).Wijngaarde et al s Bouterse (Netherlands) District Court of Amsterdam, interlocutory

order of 3 March 2000 and order of 20 November 2000. Hoge Raad der Nederlanden, 18 September 2001 (Supreme Court decision).

245

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